DENNIS  Bt  CO.  Inc. 

NEW 

LAW    BOOKS 

USED  I 

269  MAIN  STREET      I 
"IIFFALO.    N.   y. 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


A  MANUAL  OF  PROCEDURE 


THE    LAW 

OF 

CONDITIONAL   SALES 


CONTAINING 

The  Essential  Features  of  the  Laws  Governing  Condi- 
tional Sales  in  Every  State  of  the   United 
States;    also    Approved    Forms    for 
Conditional    Contracts 
of   Sale,   Acknowl- 
edgments, 
etc.,  etc. 


REVISED  EDITION 


By 

FRED  BENSON  HARING 

of  the  Buffalo  Bar 


Author  of 
"Corporate  Interstate  Commerce  Business" 


1918. 


T 

H  2247  6? 

1916 


Copyright  1918 

BY 

Fred  Benson  Haring 


!5 


PREFACE. 


The  original  publication  on  this  subject  was  brought  out 
in  August,  1907,  and  the  Author's  idea  as  to  the  manner  in 
which  this  information  should  be  presented  for  the  whole 
United  States  seems  to  have  been  justified  by  the  sale  of  such 
work.  Shortly  after  the  first  books  were  put  into  use,  inquiries 
were  made  as  to  how  this  publication  would  be  kept  up  to  date. 
There  were  so  many  firms  desirous  of  being  informed  when 
changes  took  place,  that  a  system  was  instituted  by  which  close 
and  constant  attention  has  been  given  to  new  statutes  and  all 
court  decisions  upon  the  subject,  both  State  and  Federal.  Any- 
thing of  sufficient  importance  was  published  and  issued  as  a 
supplement  to  the  original  book. 

This  additional  matter  is  now  of  such  volume  as  to  justify 
a  revision  of  the  original  book  bringing  it  in  at  the  proper  place 
and  thus  to  furnish  a  complete  and  up-to-date  edition  of  "Har- 
ing's  Conditional  Sale  Laws." 

FRED  BENSON  HARING. 
Bufifalo,  New  York, 
January,  1918. 

Ill 


FOREWORD. 


The  question  as  to  what  credit  should  be  extended  is  per- 
haps the  most  important  one  connected  with  modern  business 
transactions.  It  must  necessarily  be  given  by  every  business 
house  whether  large  or  small.  The  personal  obligation  of  a 
buyer  is  often  not  sufficient  to  justify  a  delivery  of  goods  to 
him  which  are  to  be  paid  for  in  the  future,  and  some  additional 
security  must  be  obtained  or  the  order  be  rejected.  In  such 
case  title  is  sometimes  passed  and  a  chattel  mortgage  taken 
as  security,  but  more  often  than  otherwise  the  purchaser  abso- 
lutely refuses  to  give  such  an  instrument,  on  the  ground  that 
it  is  detrimental  to  his  credit.  To  meet  these  conditions  there 
has  grown  up  the  custom  of  retaining  title  in  the  goods  sold 
until  the  purchase  price  is  paid.  Such  an  arrangement  is  known 
as  a  conditional  sale  and  is  one  of  the  safest  possible  methods 
of  securing  payments  due  in  the  future. 

When  taking  charge  of  the  legal  department  for  a  large 
corporation  doing  much  of  its  business  under  conditional  con- 
tracts of  sale,  the  author  realized  the  necessity  of  knowing, 
even  before  the  acceptance  of  an  order,  just  what  steps  could 
and  should  be  taken  to  preserve  the  vendor's  title  as  against 
the  vendee's  misfortune  or  dishonesty.  To  meet  this  need  he 
prepared  a  systematic  statement  of  the  law  and  procedure  on 
conditional  sales  for  every  State  in  the  Union.  The  results  of 
his  labors  are  embodied  in  the  present  volume. 

Every  business  house  employing  conditional  contracts  of 
sale  must  of  necessity  have  more  or  less  of  this  information,  but 
in  most  cases  it  is  not  complete  for  every  state  nor  is  it  sys- 
tematized or  in  form  to  be  readily  available.    The  author  there- 


V 


fore  believes  that  a  comprehensive,  and  systematic  statement 
such  as  he  has  endeavored  to  give  in  the  present  work  will  be 
found  of  value. 

The  arrangement  of  the  volume  is  simple.  A  few  general 
rules  or  axioms  which  govern  such  transactions  are  first  pre- 
sented. Following  these  is  a  statutory  classification  of  the 
various  states  based  on  the  similarity  of  their  laws  affecting 
conditional  sales.  Next  is  a  condensed  paragraph  statement 
of  the  law  of  conditional  sales  for  every  state  and  territory  of 
the  Union,  with  alphabetical  arrangement  of  the  states.  Then 
comes  the  main  body  of  the  work.  Here  the  states  are  again 
taken  up  in  alphabetical  order  and  the  laws  and  requirements  as 
to  conditional  sales  are  set  forth  under  uniform  headings  and  in 
detail.  Citations  are  given  and  where  the  laws  of  any  state 
make  it  necessary,  the  forms  of  acknowledgments,  affidavits, 
etc.,  of  that  particular  state  are  also  included.  In  the  latter 
part  of  the  volume  will  be  found  a  number  of  forms  of  con- 
tracts which  may  serve  as  precedents.  These  are  approved 
forms  which  have  stood  the  test  of  time. 

VI 


TABLE  OF  CONTENTS. 


Preface Ill 

Foreword V 

List  of  States  and  Territories VIII 

Outline IX 

Part  I.        Introductory 1 1 

Part  II.      Statutory  Classification  of  States 17 

Part  III.     Digest  of  State  Laws 25 

Part  IV.     State  Laws 55 

Part  V.       Forms 481 

Appendix 511 

VII 


LIST  OF  STATES  AND  TERRITORIES 
INCLUDED. 


I. 

Alabama. 

26. 

Nebraska. 

2. 

Arizona. 

27- 

Nevada. 

3- 

Arkansas. 

28. 

New  Hampshire. 

4. 

California. 

29. 

New  Jersey. 

5- 

Colorado. 

30. 

New  Mexico. 

6. 

Connecticut. 

31. 

New  York. 

7- 

Delaware. 

32- 

North  Carolina. 

8. 

District  of  Columbia. 

33- 

North  Dakota. 

9- 

Florida. 

34- 

Ohio. 

10. 

Georgia. 

35- 

Oklahoma. 

II. 

Idaho. 

36. 

Oregon. 

12. 

Illinois. 

Z7- 

Pennsylvania. 

IS- 

Indiana. 

38. 

Rhode  Island. 

M- 

Iowa. 

39- 

South  Carolina. 

IS- 

Kansas. 

40. 

South  Dakota, 

16. 

Kentucky. 

41. 

Tennessee. 

17- 

Louisiana. 

42. 

Texas. 

18. 

Maine. 

43- 

Utah. 

19. 

Maryland. 

44. 

Vermont. 

20. 

Massachusetts. 

45- 

Virginia. 

21, 

Michigan, 

46. 

Washington, 

22. 

Minnesota. 

47- 

West  Virginia. 

23- 

Mississippi. 

48. 

Wisconsin. 

24. 

Missouri. 

49. 

Wyoming, 

2.V 

Montana. 

VIII 


OUTLINE. 


The  outline  given  below  is  followed  in  the  treatment  of 
each  state,  except  New  York,  the  titles  and  their  order  being 
the  same  in  every  case  as  far  as  possible.  (See  New  York, 
page  257). 

1.  Legal  Status  of  Conditional  Sale  Contracts. 

2.  How  Executed. 

3.  Acknowledgment  or  Proof. 

4.  Recording  or  Filing. 

5.  Recording  Fee. 

6.  Re-Recording  or  Renewal. 

7.  Discharge. 

8.  Criminal  Liability  of  Vendee. 

9.  Loss,  Who  Must  Bear. 

10.  Fixtures. 

11.  Landlord's  Lien. 

12.  Notes. 

13.  Election  of  Remedies. 

14.  Repossession  and  Refund. 

15.  Railroad  Equipment. 

16.  Forms.        (Acknowledgments.      Proofs,      Affidavits, 

Certifications,  Forms  of  Discharge,  etc.) 

IX 


CONDITIONAL  SALES. 


PART  I. 
INTRODUCTORY. 


Conditional  contracts  of  sale  are  valid  as  between  the  or- 
iginal parties  thereto  without  recording  or  filing,  in  every  state 
and  territory. 

Recording  or  filing  a  conditional  contract  of  sale  is  only 
necessary  to  protect  the  vendor's  or  seller's  title  as  against 
third  parties,  who  otherwise  might  secure  some  right  or  inter- 
est in  the  property,  without  knowledge  of  the  existing  contract. 
Its  effect  is  ordinarily  to  give  legal  notice  to  third  parties  of  the 
real  ownership  of  the  property  involved,  thereby  preventing 
buyers  from  disposing  of  property  which  does  not  belong  to 
them,  or  preventing  its  sale  under  judicial  process  to  pay  these 
buyers'  debts. 

Conditional  contracts  of  sale,  if  properly  executed  and  re- 
corded or  filed  as  the  law  provides,  are  an  absolute  protection 
to  the  vendor  or  seller  as  against  nearly  all  third  parties  until 
the  goods  are  paid  for.  The  only  exceptions  arise  (a)  where 
the  vendee  or  buyer  is  engaged  in  the  business  of  selling  such 
articles,  or  using  them  in  the  course  of  manufacturing  or  in 
some  other  way,  by  which  they  must  necessarily  be  consumed 
or  destroyed  or  lose  their  identity,  (b)  in  some  instances  where 
the  articles  become  firmly  attached  to  real  property  and  cannot 
be  removed  without  material  damage  to  such  articles  or  to 
such  real  property,  (c)  in  the  state  of  Illinois  where  conditional 

II 


12  CONDITIONAL  SALES. 

contracts  of  sale  are  not  recognized  if  the  rights  of  third  par- 
ties intervene  even  though  such  contracts  be  recorded  or  filed, 

(d)  in  the  state  of  Pennsylvania  where  a  lease  or  bailment  con- 
tract with  option  to  purchase  is  the  proper  form  unless  the 
property  in  question  becomes  firmly  attached  to  real  estate, 

(e)  in  the  state  of  Louisiana  where  a  lease  with  option  to  pur- 
chase should  be  used,  (f)  in  some  few  states  where  the  courts 
have  held  that  the  destruction  of  the  property  before  full  pay- 
ment relieves  vendee  of  further  liability. 

The  distinction  between  recording  and  filing  conditional 
contracts  of  sale  should  be  observed.  The  object  to  be  at- 
tained is  the  same — notice  to  third  parties.  A  contract  in  order 
to  be  recorded,  must  be  copied,  word  for  word,  into  a  book 
kept  by  the  recording  officer  and  the  names  of  the  parties  must 
be  indexed,  for  which  service. a  charge  is  made  according  to 
the  length  of  the  contract.  The  filing  of  the  same  contract 
only  requires  that  the  paper  or  a  copy  thereof  shall  be  placed 
in  the  keeping  of  the  proper  officer  and  that  he  shall  index  the 
names  of  the  parties  to  such  contract  for  ready  reference.  The 
fees  for  filing  are  only  nominal,  and  do  not  depend  upon  the 
length  of  the  contract.  Very  few  contracts  can  be  drawn 
briefly  enough  to  keep  the  recording  fee  under  $i.oo,  while  a 
filing  fee  in  most  instances  will  not  exceed  25  cents.  Whether 
any  particular  contract  should  be  recorded  or  filed,  will  usually 
be  settled  by  the  laws  obtaining  in  the  state  in  which  the  prop- 
erty to  be  protected  is  held  after  delivery  to  the  vendee. 

Many  states  only  require  that  a  contract  of  conditional 
sale  shall  be  in  writing  and  properly  signed' to  be  valid  as  to  all 
parties.  Others  while  requiring  that  the  contract  be  recorded 
or  filed  to  be  valid  provide  that  if  a  contract  be  in  writing 
and  properly  signed,  it  may  be  recorded  or  filed  without  the 
necessity  of  securing  the  vendee's  acknowledgment  or  having 
the  instrument  signed  or  proven  by  a  subscribing  witness.  Still 
others  require  that  the  contract  must  be  acknowledged  by  the 
vendee  or  vendor  or  be  signed  or  proven  by  one  or  more  sub- 
scribinof  witnesses  in  the  same  manner  as  a  deed  of  real  estate 


INTRODUCTORY.  1 3 

before  it  can  be  recorded  or  filed.  In  some  states  the  law  is  not 
settled  as  to  what  is  necessary  in  the  way  of  acknowledgment 
or  proof  before  a  contract  of  conditional  sale  can  be  recorded 
or  filed.  In  others  such  a  contract  is  not  recognized  in  law 
when  the  rights  of  third  parties  intervene,  even  though  the 
same  be  executed  and  recorded  with  the  same  formality  as  a 
deed  of  real  estate.  Renewal  or  refiling  after  a  certain  period 
is  necessary  in  many  instances,  and  some  states  require  that  a 
contract  shall  be  discharged  from  record  after  payment,  and 
assess  a  penalty  on  the  vendor  for  a  failure  to  discharge. 

As  has  already  been  said,  in  some  of  the  states  where  con- 
ditional contracts  of  sale  must  be  filed  or  recorded  in  order  to 
be  valid  as  to  third  parties,  formal  verification  of  the  instru- 
ment is  a  prerequisite.  In  a  few  states  this  verification  must 
be  in  the  form  of  an  acknowledgment  by  the  vendor  and  the 
instrument  \\\l\  not  be  received  for  filing  or  recording  unless 
it  is  so  acknowledged.  In  most  of  the  states,  however,  where 
verification  is  required,  the  laws  provide  that  the  contract  may 
be  either  acknowledged  by  the  vendee  or  proven  by  a  subscrib- 
ing witness.  If,  then,  the  vendee  objects  to  or  refuses  acknowl- 
edgment of  the  instrument,  as  is  sometimes  the  case,  recourse 
may  be  had  to  proof  by  a  subscribing  witness  and  the  instru- 
ment so  proven  may  be  filed  or  recorded  without  the  vendee's 
acknowledgment,  and  even  without  his  knowledge  that  the 
instrument  has  been  placed  on  record.  Under  these  conditions, 
proof  by  a  subscribing  witness  becomes  at  times  a  very  im- 
portant matter,  and  for  this  reason  the  method  and  require- 
ments of  such  proof  have  been  set  forth  in  the  text  of  the  pres- 
ent volume  with  much  particularity. 

In  the  matter  of  the  criminal  liability  of  vendee  for  dis- 
posal of  property — one  of  the  subject  headings  of  the  present 
volume — it  may  be  said  that  the  status  of  property  held  under 
conditional  contract  of  sale  is  peculiar.  The  title  to  such  prop- 
erty remains  in  the  vendor,  but  notwithstanding  this,  the  ven- 
dee's first  payment  gives  him  an  interest  in  the  property  and 
this   interest  increases  with  every   payment  made.     In  other 


14  CONDITIONAL  SALES. 

words,  while  the  legal  title  remains  in  the  vendor,  the  vendee, 
if  any  payments  have  been  made,  has  an  equity  in  the  property, 
and  for  this  reason  if  he  should  make  way  with  the  property 
it  would  not  be  held  a  crime  under  the  usual  penal  statutes. 

This  is  also  true  where  property  held  under  chattel  mort- 
gage is  sold  in  defiance  of  the  rights  of  the  mortgagee.  In  many 
of  the  states  the  matter  has  been  provided  for  by  special  laws 
which  make  the  disposal  of  property  held  under  chattel  mort- 
gage or  conditional  contract  of  sale  a  crime.  All  such  laws  as 
far  as  they  apply  to  conditional  sales  have  been  specifically  set 
forth  in  the  present  volume.  Where  special  laws  make  the  sale, 
removal,  secreting  or  mortgaging  of  conditionally  sold  prop- 
erty a  crime,  these  laws  will  of  course  act  directly  to  deter 
the  vendee  from  taking  any  such  action  with  regard  to  the 
property.  Or,  if  the  property  is  disposed  of  notwithstanding 
these  laws,  they  aflford  a  means  of  bringing  pressure  to  bear 
upon  the  vendee  for  the  purpose  of  securing  payment. 

So  far  these  laws  are  of  direct  advantage  to  the  vendor. 
His  best  protection  is,  however,  in  all  cases  his  lien  upon  the 
property  itself,  and  for  this  reason  the  author  has  given  special 
prominence  in  the  present  volume  to  the  methods  to  be  fol- 
lowed, and  the  formalities  to  be  observed  in  securing  to  the 
vendor  the  strongest  possible  lien — a  lien  so  far-reaching  that 
even  should  such  property  be  disposed  of  to  an  innocent  pur- 
chaser for  value  it  may  be  followed  and  recovered  from  the 
purchaser's  hands. 

When  a  vendee  fails  in  payments  required  by  a  conditional 
contract  of  sale,  the  vendor,  if  unable  to  collect,  will  usually 
wish  to  repossess  himself  of  the  property.  In  some  states  this 
is  not  permissible,  the  laws  providing  that  the  property  must 
be  sold,  the  vendor  looking  to  the  proceeds  of  such  sale  for  his 
relief.  In  other  states  the  property  may  be  taken  possession 
of  by  prescribed  methods.  In  many  states,  however,  no  specific 
•provision  is  made  for  repossession  when  payments  fail,  nor 
are  the  respective  rights  and  relations  of  the  vendor  and  ven- 


INTRODUCTORY.  1 5 

dee  clearly  defined.  In  these  states  it  may  be  said  that  as  a 
general  rule  upon  default  in  the  contract  payments  or  upon  the 
failure  of  the  vendee  to  perform  any  other  of  the  contract  con- 
ditions, the  vendor  may,  if  he  can,  repossess  himself  of  the 
property  without  legal  process  and  with  scant  formality  of  any 
kind.  If,  however,  the  vendee  opposes  such  an  informal  taking 
of  the  property,  the  vendor  cannot  forcibly  assert  his  rights 
even  though  so  specified  in  the  contract,  but  must  secure  pos- 
session by  legal  action,  usually  by  replevin  of  the  property  or 
a  foreclosure  of  the  lien. 

In  the  digest  of  the  laws  of  the  various  states  as  given  in 
the  present  volume  the  method  of  repossession,  or  of  procedure 
in  event  of  the  failure  of  contract  payments,  or  of  other  con- 
tract conditions,  is  given  in  detail  where  prescribed  by  the 
statute  law.  In  the  states  where  such  procedure  is  not  given 
it  will  be  understood  that  the  laws  are  silent  as  to  the  method 
of  repossession  and  that  the  vendor  must,  if  an  informal  re- 
possession of  the  property  is  resisted  by  the  vendee,  proceed 
by  civil  action. 

In  those  states  where  no  statute  laws  prescribe  the  rights 
of  vendor  and  vendee,  when  property  conditionally  sold  is  to 
be  repossessed  by  civil  action,  the  courts  have  sought  to  do 
equity  by  allowing  the  vendee  a  repayment  of  the  money  al- 
ready paid  in,  less  a  reasonable  rental  for  the  use  of  the  prop- 
erty while  in  his  possession  with  a  fair  allowance  to  the  vendor 
for  damages  if  the  property  has  been  broken  or  otherwise  in- 
jured by  the  vendee  to  a  greater  extent  than  is  consistent  with 
ordinary  wear  and  tear.  To  avoid  this  complication  most  con- 
tracts contain  an  express  forfeiture  clause  by  which  all  pay- 
ments made  by  the  vendee  are  to  be  retained  by  the  vendor  as 
rent  for  the  use  of  the  property  in  case  of  its  repossession,  but 
such  provisions  are  of  doubtful  validity  as  being  against  public 
policy. 

The  status  of  conditionally  sold  property  which  has  been 
attached  to  a  building,  is  given  in  the  present  volume  under 
the  head  of  "Fixtures"  as  far  as  determined  by  statute  law  or 


l6  CONDITIONAL  SALES. 

by  court  decisions.  In  some  states,  however,  the  matter  is  not 
covered  by  statute  law  and  has  not  been  established  by  court 
decisions.  In  these  states  it  is  impossible  to  predict  with  any 
certainty  what  the  holdings  of  the  courts  will  be  should  the 
matter  come  up,  because  of  the  irreconcilable  divergences  of 
existing  decisions  in  the  various  states.  This  being  true,  it 
would  be  prudent  for  the  vendor  when  drawing  a  contract  of 
sale  for  any  state  in  which  this  matter  is  not  settled,  to  make 
specific  provision  for  the  status  of  the  property  if  it  is  to  be 
attached  to  a  building.  Such  provision  if  agreed  to  by  the  ven- 
dee would  undoubtedly  be  effective  as  between  the  parties  to 
the  agreement.  It  would  also  probably  be  sufificient  as  to  third 
parties,  if  the  contract  of  sale  is  duly  filed  or  recorded. 


PART  II. 
STATUTORY  CLASSIFICATION  OF  STATES. 


In  the  statutory  classification  of  states  which  follows,  the 
various  states  are  grouped  according  to  the  similarity,  as  to 
essential  features,  of  their  laws  governing  conditional  sales. 


CLASS  I. 

States  where  conditional  contracts  of  sale  do  not  need  to 
be  recorded  or  filed,  or  acknowledged  by  any  one,  or  be  signed 
or  proven  by  a  subscribing  witness  to  hold  title. 


ARKANSAS, 

CALIFORNIA, 

DELAWARE, 

DISTRICT  OF 
COLUMBIA, 

IDAHO, 

INDIANA, 

LOUISIANA. 


MASSACHUSETTS, 


MICHIGAN, 


(Except  for  railroad  equipment). 

(Except  for  railroad  equipment). 
(Except  landlord  for  rent). 
(Where  contract  is  not  more  than 

$100.00). 
(Except  landlord  for  rent). 
(Except  for  railroad  equipment). 
(Except  for  railroad  equipment). 
(Status    doubtful.      See     Louisiana 

under  "Digest  of  State  Laws,  Part 

III). 
(Except  landlord    for    rent). 
(Except  for  railroad  equipment). 
(Except  where  property  becomes  a 

fixture  on  real  estate). 
(Except  for  railroad  ecjuipment). 
(Except  where  property  goes  to  a 

retailer  for  resale). 
(Except  for  railroad  equipment). 


V 


i8 


CONDITIONAL  SALES. 


(Class  I — Continued.) 
MISSISSIPPI, 


NEVADA, 
OREGON, 


RHODE  ISLAND, 
TENNESSEE, 


UTAH, 


(Not  within  three  years,  except  as  to 
landlord's  lien  and  where  vendee 
shall  transact  business  as  a  trader 
or  otherwise  and  fail  to  display  a 
proper  sign). 

(Except  for  railroad  equipment). 

(Except  for  railroad  equipment). 

(Except  where  property  becomes  a 
fixture  on  real  estate). 

(Except  for  railroad  equipment). 

(Except  for  railroad  equipment). 

(Except  for  fencing  material). 

(Except  for  railroad  equipment). 

(Except  for  railroad  equipment). 


CLASS  II. 

States  where  conditional  contracts  of  sale  must  be  re- 
corded or  filed  to  hold  title  as  against  third  parties,  but  need 
not  be  acknowledged  by  any  one,  or  be  signed  or  proven  by 
a  subscribing  witness  in  order  to  be  so  recorded  or  filed. 

ALABAMA, 

ARIZONA,  (Except  for  railroad  equipment). 

KANSAS,  (Except  for  railroad  equipment). 

(Except  for  railroad  equipment). 

(Except  for  railroad  equipment). 

(Where  property  becomes  a  fixture 
on  real  estate). 

(Except  for  railroad  equipment). 

(Where  property  goes  to  a  retailer 
for  resale). 

(Except  for  railroad  equipment). 

(Except  for  railroad  equipment). 

(Affidavit    of    vendor    must    be    at- 
tached). 

(Except  for  railroad  equipment). 


MAINE, 

MARYLAND, 

MASSACHUSETTS. 


MICHIGAN, 

MINNESOTA, 

MONTANA, 

NEBRASKA. 


STATUTORY   CLASSIFICATION    OF  STATES. 


19 


(Class  II — Continued.) 

NEW  YORK, 
OHIO, 

OKLAHOMA, 
PENNSYLVANIA, 


TEXAS, 

VERMONT, 

VIRGINIA, 


WASHINGTON, 


WEST  VIRGINIA, 
WISCONSIN, 

WYOMING, 


(Except  for  railroad  equipment). 

(Affidavit  of  vendor  must  be  at- 
tached). 

(Except  for  railroad  equipment). 

(Where  property  becomes  a  fixture 
on  real  estate). 

(Except  for  railroad  equipment). 

(Except  for  railroad  equipment). 

(Must  be  signed  by  vendee  and 
vendor), 

(Except  for  railroad  equipment). 

(Must  be  signed  by  vendee  and 
vendor). 

(Except  for  railroad  equipment). 

(Except  for  railroad  equipment). 

(Must  be  signed  by  vendee  and  ven- 
dor). 

(Affidavit  of  vendor  must  be  at- 
tached). 

(Except  for  railroad  equipment). 


CLASS  III. 


States  where  conditional  contracts  of  sale  must  be  re- 
corded or  filed  to  hold  title  as  against  third  parties,  and  must 
be  acknowledged  by  vendee,  or  be  signed  or  proven  by  a  sub- 
scribing witness  in  order  to  be. recorded  or  filed. 


GEORGIA, 


KENTUCKY, 


(Contract  must  be  acknowledged  by 
vendee  in  person,  or  be  proven  by 
one  subscribing  witness  to  the 
vendee's  signature). 

(Contract  must  be  acknowledged  by 
vendee,  or  must  be  signed  by  two 


20 


CONDITIONAL  SALES. 


(Class  III— Continued.) 


MISSISSIPPI, 


MISSOURI, 


NEW  JERSEY, 


NORTH  CAROLINA, 


NORTH  DAKOTA, 


subscribing  witnesses  to  vendee's 
signature,  be  proven  by  one  and 
be  recorded). 

(Contract  need  not  be  recorded 
within  three  years  from  its  date 
except  as  to  landlord's  lien  for 
rent,  and  where  vendee  shall  trans- 
act business  as  a  trader  or  other- 
wise and  fail  to  display  a  proper 
sign). 

(Contract  should  be  recorded  and 
needs  the  acknowledgment  of 
vendee,  or  proof  of  vendee's  signa- 
ture by  one  subscribing  witness). 

(Copy  of  contract  may  be  filed  and 
no  acknowledgment  or  proof  is  re- 
quired. If  original  sent  for  record 
must  be  acknowledged  by  vendee 
or  be  signed  and  proven  by  one 
subscribing  witness  to  vendee's 
signature). 

(Contract  must  be  acknowledged  by 
vendee  in  person,  or  be  proven  by 
one  subscribing  witness  to  the  ven- 
dee's signature,  and  be  recorded). 

(Contract  must  be  acknowledged  by 
vendee  in  person  or  be  proven  by 
one  subscribing  witness  to  the 
vendee's  signature,  and  be  regis- 
tered). 

(Contract  should  be  signed  by  two 
subscribing  witnesses,  and  must  be 
filed  to  reserve  title  as  against 
third  parties.  There  is  no  pro- 
vision for  recordinar.  Some  record- 


STATUTORY   CLASSIFICATION   OF   STATES. 


21 


(Class  III— Continued.) 


SOUTH  CAROLINA, 


SOUTH  DAKOTA, 


ing  officers  accept  same  for  filing 
with  one  witness  and  some  with 
no  witnesses  at  all,  but  even  if 
filed  without  the  necessary  wit- 
nesses it  is  doubtful  if  such  filing 
has  any  eflfect  except  in  the  ap- 
pearance it  gives  of  legality). 

(Where  contract  is  for  .$100.00  or 
less  it  may  be  filed  if  signed  by 
two  subscribing  witnesses,  and  it 
is  not  necessary  that  such  wit- 
nesses prove  it  by  oath.  Where 
for  more  than  $100.00,  one  of  such 
witnesses  must  prove  the  instru- 
ment by  his  oath  before  it  can  be 
recorded). 

(Contract  should  be  signed  by  two 
subscribing  witnesses  to  the  ven- 
dee's signature,  after  which  it 
must  be  filed). 


CLASS  IV. 


States  where  conditional  contracts  of  sale  must  be  re- 
corded to  hold  title  as  against  third  parties  and  may  be  ac- 
knowledged by  vendor  or  vendee  so  as  to  entitle  them  to  be 
recorded. 


FLORIDA, 


(Contract  is  valid  against  all  parties, 
excepting  landlord's  lien  for  rent, 
without  recording  for  the  term  of 
two  years  after  vendee  secures 
possession.  In  order  to  record, 
vendor  must  sign  and  acknowl- 
edge the  contract  in  person,  or 
vendor's  signature  must  be  proven 


22 


CONDITIONAL  SALES. 


(Class  IV— Continued.) 


IOWA, 


NEW  MEXICO, 


by  one  subscribing  witness.  There 
should  always  be  two  subscribing 
witnesses  to  vendor's  signature) 

(Except  for  railroad  equipment). 

(Contract  must  be  signed  by  all 
parties,  and  in  order  that  same 
may  be  recorded  the  vendee  or 
vendor  must  acknowledge  in  per- 
son). 

(Except  railroad  equipment). 

(Contract  must  be  acknowledged  by 
vendor  or  vendee  in  person  and 
be  recorded). 


CLASS  V. 


States  where  conditional  contracts  of  sale  must  be  re- 
corded or  filed  to  hold  title  as  against  third  parties  and  must 
be  acknowledged  by  vendee  in  person  in  order  to  be  so  re- 
corded or  filed. 


COLORADO, 

CONNECTICUT, 

DISTRICT  OF 

COLUMBIA, 

NEW  HAMPSHIRE, 


(Where  over  $100.00). 

(Must  be  accompanied   by  affidavit 

of  vendee  and  vendor). 
(Except  for  railroad  equipment). 


CLASS  VI. 

States  where  conditional  contracts  of  sale  are  not  valid 
as  against  third  parties  even  when  acknowledged  by  the  vendee 
and  recorded. 


STATUTORY   CLASSIFICATION   OF  STATES. 


23 


(Class  VI— Continued.) 
ILLINOIS, 


(Property  to  be  secured  against  third 
parties  must  be  held  under  a  chat- 
tel mortgage  acknowledged  by 
mortgagor  and  duly  recorded). 

(Except  railroad  equipment). 


LOUISIANA, 


(Except  railroad  equipment). 


24  ■  CONDITIONAL  SALES. 


PART  III. 
DIGEST  OF  STATE  LAWS. 


ALABAMA, 


ARIZONA, 


A  conditional  contract  of  sale  must 
be  in  writing  signed  by  vendee, 
but  does  not  need  to  be  signed  by 
vendor.  No  witness  is  necessary. 
No  acknowledgment  or  proof  is 
required.  The  contract  must  be 
recorded  to  hold  title  as  against 
third  parties,  except  that  where 
the  amount  is  less  than  $200.00 
and  the  county  where  the  record 
is  to  be  made  has  more  than 
80,000  inhabitants  (Jefferson,  Mo- 
bile and  Montgomery  Counties") 
the  contract  need  not  be  recorded. 
Where  property  covered  is  rail- 
road equipment  the  contract  mu?f 
be  recorded. 

A  conditional  contract  of  sale  must 
be  in  writing  signed  by  vendee  and 
vendor.  No  witness  is  necessary, 
The  contract  must  be  filed  to  hold 
title  as  against  third  parties. 
Where  the  original  contract  is  sent 
for  filling  no  acknowledgment  is 
necessary,  but  where  a  copy  is  sent 
then  the  original  must  have  been 
acknowledged  by  the  vendee.  Con- 
tracts covering  railroad  equipment 


25 


26 


CONDITIONAL  SALES. 


ARKANSAS, 


CALIFORNIA, 


COLORADO, 


must  be  signed  by  all  parties,  be 
acknowledged  by  vendee  and  be 
recorded, 

A  conditional  contract  of  sale  should 
be  in  writing  and  be  signed  by  the 
vendee  but  does  not  need  to  be 
signed  by  vendor.  No  witness  is 
necessary.  No  acknowledgment 
or  proof  is  required  and  it  does  not 
need  to  be  either  filed  or  recorded 
to  hold  title  as  against  third  par- 
ties, except  where  the  property 
becomes  an  irremovable  fixture 
upon  real  estate.  Where  the  prop- 
erty is  railroad  equipment  the  con- 
tract must  be  signed  by  all  parties, 
be  acknowledged  by  the  vendee 
and  be  recorded. 

A  conditional  contract  of  sale  muiit 
be  in  writing  signed  by  vendee, 
but  does  not  need  to  be  signed  by 
vendor.  No  witness  is  necessary. 
No  acknowledgment  or  proof  is 
required  and  it  does  not  need  to 
be  either  filed  or  recorded  in  order 
to  hold  title  as  against  third 
parties. 

A  conditional  sale  contract  which 
enforces  a  direct  obligation  upon 
the  vendee  to  pay  the  purcha.<"e 
price  is  held  to  be  a  chattel  mort- 
gage. The  exact  situs  of  the  mod- 
ern conditional  sale  contract  is  not 
definitely  determined,  where  the 
rights  of  third  parties  intervene. 
It  is  advisable  to  secure  a  chattel 


DIGEST   OF   STATE   LAWS.  27 

mortgage  in  writing,  have  it 
signed  and  acknowledged  by  the 
mortgagor  and  record  it,  when  no 
question  can  be  raised.  Where 
the  property  covered  is  railroad 
equipment  a  conditional  sale  con- 
tract may  be  used^  it  must  be  in 
writing,  be  acknowledged  by  ven- 
dee and  may  be  either  recorded  or 
filed. 

CONNECTICUT,  A  conditional  sale  contract  must  be 

in  writing  signed  by  vendee,  but 
does  not  need  to  be  signed  by  ven- 
dor. No  witness  is  necessary. 
Such  a  contract  to  be  valid  and 
hold  title  as  against  third  persons 
must  be  recorded,  and  in  order 
that  same  may  be  recorded,  it 
must  be  acknowledged  by  the 
vendee.  Where  the  property  cov- 
ered is  railroad  equipment  the  con- 
tract must  be  signed  and  acknowl- 
edged by  all  parties  and  must  be 
recorded. 

DELAWARE,  A   conditional    sale   contract   should 

be  in  writing  and  be  signed  by  ven- 
dee, it  does  not  need  to  be  signed 
by  vendor.  No  witness  is  neces- 
sary, no  acknowledgment  or  proof 
is  required  and  it  does  not  need  to 
be  either  filed  or  recorded  in  or- 
der to  hold  title  as  against  all 
third  persons  with  the  possible 
exception  of  a  landlord's  lien  for 
rent  of  the  premises,  where  the 
property    in    fiuestion     is     placed. 


28 


CONDITIONAL  SALES. 


DISTRICT  OF 
COLUMBIA, 


FLORIDA, 


Where  the  property  covered  is 
railroad  equipment,  the  contract 
must  be  acknowledged,  does  not 
state  by  whom,  and  be  recorded. 

A  conditional  sale  contract  must  be 
in  writing  and  be  signed  by  the 
vendee,  it  does  not  need  to  be 
signed  by  the  vendor.  No  witness 
is  necessary.  Where  the  contract 
amount  is  more  than  $100.00  it 
must  be  recorded  to  hold  title  as 
against  third  persons,  and  must  be 
acknowledged  by  the  vendee  m  or- 
der to  be  so  recorded.  Where  the 
amount  is  $100.00  or  less  no  ac- 
knowledgment or  recording  is 
necessary  to  hold  title  as  against 
all  third  persons  with  the  possible 
exception  of  a  landlord's  lien  for 
rent  of  the  premises  where  the 
property  in  question  is  located. 
Railroad  equipment  no  special 
statute. 

A  conditional  sale  contract  should 
be  in  writing  and  be  signed  by 
vendee.  No  record  is  necessary 
for  the  term  of  two  years  as 
against  all  persons  with  the 
exception  of  a  landlord's  lien 
for  rent  of  the  premises  where 
the  property  is  located.  In  order 
that  the  vendor  shall  be  protected 
after  two  years  from  the  date 
when  vendee  secures  possession 
and  at  all  times  as  against  a  land- 
lord's  lien   the   said   vendor  must 


DIGEST   OF   STATE    LAWS.  29 

sign  the  contract,  and  this  should 
always  be  done  before  two  sub- 
scribing witnesses.  The  vendor 
may  then  acknowledge  the  con- 
tract in  person  or  his  signature 
may  be  proven  by  the  oath  of  one 
subscribing  witness,  after  which  it 
may  be  recorded.  Where  the 
property  sold  is  railroad  equip- 
ment the  two  years  does  not  apply, 
and  the  contract  must  be  signed 
by  all  parties,  be  acknowledged  by 
the  vendee  and  be  recorded  in  or- 
der to  hold  title  as  against  third 
parties. 

GEORGIA,  A   conditional    sale   contract   should 

be  in  writing,  signed  by  vendee, 
but  does  not  need  to  be  signed  by 
vendor.  It  may  be  acknowledged 
by  the  vendee  in  person,  or  a 
single  witness  to  vendee's  signa- 
ture may  sign  the  contract,  and 
can  later  on  prove  the  contract  by 
his  oath  so  that  it  may  be  recorded. 
Every  such  contract  should  be 
witnessed,  and  the  salesman  who 
takes  it  may  be  the  witness,  if  he 
does  not  also  sign  the  contract  for 
and  on  behalf  of  the  vendor.  If  he 
does  so  sign  it  for  the  vendor  he 
should  secure  some  disinterested 
third  party  to  sign  as  a  witness  to 
the  vendee's  signature.  A\'here 
the  property  covered  is  railroad 
equipment  the  contract  should  be 
signed  b}-  all  ])arties  thereto.  A 
witness  to  the  vendee's   signature 


30 


CONDITIONAL  SALES. 


IDAHO, 


ILLINOIS, 


can  prove  it  for  record.  It  must 
be  recorded  as  a  notice  to  third 
parties. 

A  conditional  sale  contract  should  be 
in  writing,  signed  by  vendee,  but 
does  not  need  to  be  signed  by  ven- 
dor. No  witness  is  necessary.  It 
does  not  need  to  be  either  ac- 
knowledged or  proven,  filed  or  re- 
corded in  order  to  hold  title  as 
against  all  third  parties.  Where 
the  property  covered  is  railroad 
equipment  both  parties  must  sign 
it,  and  the  vendee  must  acknowl- 
edge it,  or  it  must  be  proved  as 
deeds  are  proved  and  be  recorded. 

A  conditional  sale  contract  in  Illinois 
is  only  valid  as  between  the  par- 
ties thereto,  and  against  an  as- 
signee for  creditors  under  the  state 
law.  No  witness  is  necessary. 
The  vendee  should  sign  the  con- 
tract and  the  vendor  does  not  need 
to  sign  it.  It  cannot  be  recorded 
so  as  to  protect  vendor's  interests 
against  third  persons.  An  order 
form  of  contract  should  be  used  in 
Illinois  providing  for  the  giving 
of  a  chattel  mortgage  upon  the 
property  to  secure  the  purchase 
price.  A  chattel  mortgage  must 
be  signed  by  the  mortgagor,  be 
acknowledged  by  him  and  be  re- 
corded. Where  the  property  cov- 
ered is  railroad  equipment  the  con- 
tract  may   be   one   of   conditional 


DIGEST   OF   STATE    LAWS. 


31 


INDIANA, 


IOWA, 


KANSAS, 


sale  and  to  hold  title  as  against 
third  persons  must  be  acknowl- 
edged by  the  vendee  and  be  re- 
corded or  filed. 

A  conditional  sale  contract  must  be 
in  writing  and  be  signed  by  ven- 
dee, but  it  does  not  need  to  be 
signed  by  the  vendor.  No  witness 
is  necessary.  It  does  not  need  to 
be  either  acknowledged  or  proved, 
recorded  or  filed  in  order  to  hold 
title  as  against  all  third  parties. 
Where  the  property  covered  is 
railroad  equipment  the  contract 
should  be  signed  and  acknowl- 
edged by  vendee  and  be  recorded. 

A  conditional  sale  contract  must  be 
in  writing  and  should  be  signed  by 
vendee  and  vendor.  No  witness 
is  necessary  to  the  vendee's  signa- 
ture. In  order  to  hold  title  as 
against  third  parties,  the  contract 
must  be  recorded.  The  vendor  or 
vendee  may  acknowledge  the  con- 
tract so  that  it  can  be  recorded. 
Where  the  property  sold  is  rail- 
road equipment  the  contract  must 
be  signed  by  all  parties,  be  ac- 
knowledged by  the  vendee  and  be 
recorded. 

A  conditional  sale  contract  must  be 
in  writing  and  be  signed  by  the 
vendee,  it  does  not  need  to  be 
signed  by  vendor.  No  witness  is 
necessary.  In  order  to  hold  title 
as  against  third  parties  the  original 


32 


CONDITIONAL  SALES. 


or  a  true  copy  must  be  filed.  There 
is  no  requirement  that  the  con- 
tract should  be  either  proven  or 
acknowledged  by  any  one  in  or- 
der to  be  so  filed.  Where  the 
property  covered  is  railroad  equip- 
ment then  the  contract  shall  be 
executed  by  all  parties  thereto, 
shall  be  acknowledged  by  the  ven- 
dee or  be  proven  as  deeds  are 
proven  and  be  recorded. 


KENTUCKY, 


A  conditional  sale  contract  must  be 
in  writing  signed  by  the  vendee. 
In  order  to  hold  title  as  against 
third  parties  it  must  be  recorded. 
In  order  to  be  recorded,  it  must 
be  acknowledged  by  the  vendee 
in  person,  or  be  proven  by  the 
oath  of  either  of  two  witnesses, 
each  of  whom  must  have  signed 
the  contract  as  a  witness  to  the 
vendee's  signature.  The  salesman 
who  takes  the  order  may  act  as 
one  witness,  if  he  does  not  also 
sign  the  contract  on  behalf  of  the 
vendor.  Where  the  property  cov- 
ered is  railroad  equipment  the  in- 
strument must  be  acknowledged 
by  vendee  or  be  proven  by  a  wit- 
ness as  above  and  be  recorded. 


LOUISIANA, 


A  conditional  sale  contract  should 
be  in  writing  and  be  signed  by  the 
vendee,  but  vendor  does  not  need 
to  sign  the  contract.  No  witness 
is    necessary.       No     acknowledg- 


DIGEST  OF   STATE   LAWS.  33 

ment  or  proof  is  required,  and  it 
cannot  be  filed  or  recorded,  so  as 
to  protect  the  vendor's  rights  as 
against  a  bona  fide  purchaser. 
Such  an  instrument  is  held  to  be 
an  ordinary  contract  of  sale  with 
a  vendor's  privilege.  The  proper 
contract  for  use  in  Louisiana  is  a 
lease  with  option  to  purchase,  and 
this  does  not  need  to  be  acknowl- 
edged or  proven  by  any  one  and 
does  not  need  to  be  recorded,  but 
it  protects  as  against  all  except 
a  landlord's  lien  for  rent  of  the 
premises  where  such  property  is 
placed.  Where  the  property  cov- 
ered is  railroad  equipment,  a  con- 
ditional sale  contract  may  be  used. 
It  must  be  signed  by  all  parties 
thereto,  be  acknowledged  by  ven- 
dee or  proven  as  deeds  are  re- 
quired to  be  proven  and  be  re- 
corded. 

MAINE,  A  conditional  sale  contract  must  be 

in  writing  signed  by  the  vendee, 
but  does  not  need  to  be  signed  by 
vendor.  No  witness  is  necessary. 
No  acknowledgment  or  proof  is 
required  but  the  contract  must  be 
recorded  in  order  to  hold  title  as 
against  third  persons.  Where  the 
property  covered  is  railroad  equip- 
ment the  contract  must  be  signed 
by  all  parties  thereto  and  must  be 
acknowledged  by  vendee  or  be 
proven  as  deeds  are  required  to  be 
proven  and  must  be  recorded. 


34 


CONDITIONAL  SALES. 


MARYLAND, 


MASSACHUSETTS. 


A  conditional  sale  contract  must  be 
in  writing-  signed  by  vendee  but 
does  not  need  to  be  signed  by  ven- 
dor. No  witness  is  necessary.  In 
order  that  the  contract  shall  be 
valid  as  against  third  persons 
without  notice,  same  or  a  memo- 
randum thereof  must  be  recorded. 
No  proof  or  acknowledgment  by 
any  one  is  required.  As  to  a  land- 
lord's lien  for  rent  of  the  premises 
where  such  property  is  placed,  it 
seems  probable  that  where  such 
record  is  made  before  the  property 
covered  thereby  is  moved  upon 
the  landlord's  premises,  then  the 
conditional  sale  contract  would  be 
a  protection  as  against  a  distress 
for  rent.  Where  the  property  sold 
is  railroad  equipment  the  contract 
must  be  signed  by  all  parties 
thereto,  be  acknowledged  by  the 
vendee  in  person  and  be  recorded 
in  the  same  manner  as  a  deed  of 
real  estate. 

A  conditional  sale  contract  should 
be  in  writing  signed  by  all  par- 
ties thereto.  No  witness  is  neces- 
sary and  no  acknowledgment  or 
proof  is  required.  Where  the 
property  covered  is  such  that  it  is 
afterwards  wrought  into  or  at- 
tached to  real  estate  in  such  a 
manner  as  to  make  it  a  fixture, 
then  in  order  that  same  shall  be 
valid  as  to  a  mortgagee,  purchaser 
or  grantee  of  said  real  estate,  the 


DIGEST   OF   STATE   LAWS. 


35 


MICHIGAN, 


MINNESOTA, 


contract  must  be  recorded.  As  to 
ordinary  personal  property  no  rec- 
ord is  necessary.  Where  the  prop- 
erty covered  is  railroad  equip- 
ment the  contract  must  be  signed 
by  all  parties,  be  acknowledged  by 
the  vendee  and  be  recorded. 

A  conditional  sale  contract  should  be 
in  writing  and  be  signed  by  ven- 
dee. It  does  not  need  to  be  signed 
by  the  vendor.  No  witness  is  nec- 
essary. No  acknowledgment  or 
proof  is  required  and  it  does  not 
need  to  be  recorded  or  filed  in  or- 
der to  hold  title  as  against  third 
parties,  except  where  the  property 
involved  goes  to  a  person,  firm 
or  corporation  regularly  engaged 
or  about  to  engage  in  the  business 
of  buying  and  selling  such  prop- 
erty (retailer),  with  the  under- 
standing that  same  may  be  resold, 
then  as  to  all  third  parties  a  copy 
of  the  contract  must  be  filed.  Rail- 
road equipment  may  be  delivered 
under  conditional  sale  contract 
but  in  order  to  be  valid  as  against 
third  parties,  it  must  be  acknowl- 
edged by  vendee  and  be  recorded. 

A  conditional  sale  contract  should  be 
in  writing  signed  by  the  vendee, 
but  does  not  need  to  be  signed  by 
the  vendor.  No  witness  is  neces- 
sary. No  acknowledgment  or 
proof  is  required,  but  in  order  to 
hold  title  as  against  third  parties, 


36  CONDITIONAL  SALES. 

the  contract  must  be  filed.  If  the 
property  covered  is  railroad  equip- 
ment the  contract  must  be  signed 
and  acknowledged  by  the  vendee 
and  be  recorded,  to  hold  title  as 
against  third  parties. 

MISSISSIPPI,  A  conditional  sale  contract  should  be 

in  writing  signed  by  the  vendee, 
but  it  does  not  need  to  be  signed 
by  the  vendor.  Within  a  period 
of  three  years  from  its  date,  such 
a  contract  is  valid  without  record- 
ing or  filing  as  to  all  third  persons 
except  a  landlord's  lien  for  rent 
of  the  premises  where  such  prop- 
erty may  be  placed,  and  excepting 
as  to  creditors  of  a  party  who  shall 
transact  business  as  a  trader  or 
otherwise  with  the  addition  of  the 
word  "Agent,"  "Factor,"  "&  Com- 
pany," "&  Co.",  or  like  words,  and 
fail  to  disclose  the  name  of  his 
principal  or  partner  by  a  sign  in 
letters  easily  read,  placed  con- 
spicuously on  the  building  where 
said  business  is  transacted,  or,  as 
to  creditors  of  a  person  who  shall 
transact  business  in  his  own  name 
without  any  such  addition.  In 
such  instances  the  contract  must 
be  recorded  to  hold  title  as  against 
creditors  and  other  third  parties. 
Such  a  contract  may  be  recorded 
if  signed  by  one  subscribing  wit- 
ness, who  takes  his  oath  that  he 
saw  the  vendee  execute  the  instnx- 
ment ;    this    subscribing    witness 


DIGEST  OF   STATE   LAWS.  37 

may  be  the  salesman  who  secured 
the  order,  provided  he  does  not 
also  sign  the  contract  on  behalf 
of  the  vendor.  It  is  advised 
that  all  contracts  taken  in  this 
state  should  be  witnessed  so  that 
same  may  afterward  be  proved 
and  recorded,  if  necessary.  When 
the  property  covered  is  railroad 
equipment,  same  should  be  signed 
and  acknowledged  by  the  vendee 
in  person  and  must  be  recorded, 
so  as  to  protect  vendor  as  against 
all  third  parties. 

MISSOURI,  A  conditional   sale   contract   should 

be  in  writing  signed  ty  vendee 
but  does  not  need  to  be  signed  by 
vendor.  In  order  to  hold  title  as 
against  third  parties,  it  may  be  re- 
corded if  acknowledged  by  the 
vendee  in  person  or  where  wit- 
nessed and  proven  by  one  sub- 
scribing witness.  It  is  not  neces- 
sary to  record  the  contract,  how- 
ever, in  order  to  hold  title  as 
against  third  parties,  nor  is  it  re- 
quired that  such  contract  shall  be 
acknowledged  by  the  vendee  or  be 
signed  or  proven  by  a  subscribing 
witness.  Simply  get  the  vendee's 
signature  on  the  contract,  then 
file  a  copy  and  the  vendor's  rights 
will  be  protected.  Where  the 
property  sold  is  railroad  equip- 
ment the  contract  in  order  to  be 
valid  and  hold  title  as  against  all 
third  parties  must  be  signed  by  all 


38 


CONDITIONAL  SALES. 


MONTANA, 


NEBRASKA, 


parties  thereto  and  be  duly  ac- 
knowledged by  the  vendee  and  be 
recorded. 

A  conditional  sale  contract  must  be 
in  writing  signed  by  the  vendee, 
but  it  does  not  need  to  be  signed 
by  the  vendor,  and  no  witness  is 
necessary.  No  acknowledgment 
or  proof  of  the  contract  is  re- 
quired. In  order  to  hold  title  as 
against  third  persons,  the  contract 
must  be  filed.  Where  the  prop- 
erty  covered  is  railroad  equip- 
ment, it  must  be  signed  by  all 
parties  thereto,  be  duly  acknowl- 
edged or  proved  the  same  as  a 
deed  of  real  estate,  and  it  must 
then  be  recorded. 

A  conditional  sale  contract  must  be 
in  writing  signed  by  vendee,  but 
it  does  not  need  to  be  signed  by 
the  vendor,  and  no  witness  is 
necessary.  The  contract  need  not 
be  acknowledged  or  proved,  but 
it  must  be  filed  to  hold  title  as 
against  third  persons.  In  order  to 
be  so  filed  a  copy  of  the  contract 
may  be  sent,  to  which  must  be  at- 
tached an  affidavit  of  the  vendor 
or  lessor,  or  his  agent  or  attorney, 
containing  the  names  of  the  ven- 
dor or  lessor  and  vendee  or  lessee, 
with  a  description  of  the  property 
and  its  value,  also  the  full  and  true 
interest  of  the  vendor  or  lessor 
therein.    Where  the  property  cov- 


DIGEST  OF   STATE   LAWS. 


39 


NEVADA, 


NEW  HAMPSHIRE. 


ered  is  railroad  equipment,  the 
contract  must  be  signed  by  all 
parties  thereto,  be  acknowledged 
by  the  vendee  or  be  proven  in  the 
same  manner  as  deeds  of  real 
estate  are  proven  and  be  recorded. 

A  conditional  sale  contract  should 
be  in  writing  signed  by  vendee, 
but  does  not  need  to  be  signed  by 
vendor,  and  no  witness  is  neces- 
sary. The  contract  does  not  need 
to  be  acknowledged  or  proven  or 
filed  or  recorded  in  order  to  hold 
title  as  against  third  person. 
Where  the  property  covered  is 
railroad  equipment  same  must  be 
in  writing  signed  by  all  parties 
thereto,  be  acknowledged  or 
proven  by  the  vendee  and  be  rec- 
orded. 

A  conditional  sale  contract  must  be 
in  writing  signed  by  vendee,  but 
does  not  need  to  be  signed  by 
vendor,  no  witness  is  necessary. 
In  order  that  the  contract  shall  be 
valid  as  against  third  parties,  it 
must  be  recorded,  where  the  prop- 
erty covered  is  not  household  fur- 
niture. In  order  that  the  contract 
may  be  so  recorded  it  is  not  neces- 
sary that  it  should  be  proven  by  a 
subscribing  witness,  nor  acknowl- 
edged by  the  vendor  or  vendee.  It 
must,  however,  have  attached  to 
it  the  affidavit  of  all  parties  to  the 
agreement,   setting  forth   the   na- 


40  CONDITIONAL  SALES. 

ture  of  the  transaction.  If  the 
vendor  or  vendee,  or  each,  is  a 
partnership,  the  affidavit  may  be 
made  for  either  such  partnership 
by  any  partner.  Where  the  prop- 
erty covered  is  railroad  equip- 
ment, it  must  be  signed  by  all  par- 
ties thereto,  be  duly  acknowledged 
by  the  vendee,  or  be  proven  in  the 
same  manner  as  deeds  of  real  es- 
tate are  proven  and  must  be  rec- 
orded.    No  affidavit  is  necessary. 

NEW  JERSEY,  A   conditional   sale   contract   should 

be  in  writing  signed  by  the  ven- 
dee, but  does  not  need  to  be  signed 
by  the  vendor.  In  order  to  hold 
title  as  against  third  parties  it 
must  be  recorded.  It  may  be  ac- 
knowledged by  the  vendee  in  per- 
son or  a  single  witness  to  the  ven- 
dee's signature  can  sign  the  con- 
tract and  may  then  prove  same  by 
his  oath  so  that  it  can  be  recorded. 
Every  such  contract  should  be  wit- 
nessed and  the  salesman  who 
takes  it  can  be  such  subscribing 
witness,  if  he  does  not  also  sign 
the  contract  for  and  on  behalf  of 
the  vendor;  in  case  he  does  so 
sign  the  contract  for  the  vendor, 
then  he  should  secure  some  disin 
terested  third  party  to  sign  as  a 
witness  to  the  vendee's  signature. 
Where  the  vendee  is  a  corporation 
the  corporate  seal  should  be  im- 
pressed upon  the  contract  and  the 
witness  should  satisfy  himself  that 


DIGEST  OF   STATE    LAWS. 


41 


NEW  MEXICO. 


NEW  YORK, 


NORTH  CAROLINA, 


such  seal  is  the  corporate  seal,  so 
that  he  may  thereafter  make  oath 
to  that  fact  in  proving  the  con- 
tract. Where  the  property  sold  is 
railroad  equipment,  in  order  to  be 
valid  as  against  subsequent  judg- 
ment creditors  and  bona  fide  pur- 
chasers for  value,  it  must  be  duly 
acknowledged  by  the  vendee  and 
be  recorded. 

A  conditional  sale  contract  should  be 
in  writing  signed  by  vendee  and 
vendor,  but  no  witness  is  neces- 
sary. The  contract  must  be  ac- 
knowledged by  vendee  or  vendor 
and  be  filed  or  recorded  in  order 
to  hold  title  as  against  third  par- 
ties. 

A  conditional  contract  of  sale  should 
be  in  writing  signed  by  vendee. 
It  does  not  need  to  be  either  ac- 
knowledged by  vendee  or  vendor, 
nor  be  signed  or  proven  by  a  sub- 
scribing witness,  but  it  must  be 
filed  in  order  to  hold  title  as 
against  third  parties.  There  is  no 
necessity  for  recording.  On  arti- 
cles attached  or  to  be  attached  to 
a  building  the  contract  shall  con- 
tain a  description  of  such  building 
by  street  and  number,  etc.,  if 
known,  so  that  same  may  be  read- 
ily identified.  Contracts  for  rail- 
road equipment  must  be  acknowl- 
edged by  vendee  and  be  recorded. 

A  conditional  sale  contract  should 
be  in  writing  signed  by  the  vendee, 


42  CONDITIONAL  SALES. 

but  does  not  need  to  be  signed  by 
the  vendor.  One  witness  to  the 
vendee's  signature  is  necessary. 
In  order  to  hold  title  as  against 
third  parties,  the  contract  must  be 
registered  and  may  be  acknowl- 
edged by  the  vendee  in  person,  or 
the  subscribing  witness  to  the 
vendee's  signature  may  prove 
same  by  his  oath,  so  that  it  may  be 
registered.  The  salesman  who 
takes  the  order  may  be  the  sub- 
scribing witness,  provided  he  does 
not  also  sign  the  contract  for  and 
on  behalf  of  the  vendor;  if  he  does 
so  sign  it  for  the  vendor  he  should 
secure  some  disinterested  third 
party  to  sign  as  a  witness  to  the 
vendee's  signature.  Where  the 
property  covered  is  railroad  equip- 
ment, same  must  be  in  writing, 
duly  acknowledged  (does  not  state 
by  whom)  and  must  be  recorded. 

NORTH  DAKOTA,  A  conditional  sale  contract  must  be 

in  writing  signed  by  the  vendee, 
but  does  not  need  to  be  signed  by 
the  vendor.  In  order  to  hold  title 
as  against  third  parties,  the  con- 
tract or  an  authenticated  copy 
must  be  filed.  It  does  not  need  to 
be  either  acknowledged  or  proven 
in  order  to  be  so  filed.  The  law 
is  not  clear  on  the  point  as  to  wit- 
nessing such  a  contract,  but  it  ex- 
pressly provides  that  no  chattel 
mortgage  can  be  filed  unless 
signed    by    two    subscribing    wit- 


DIGEST   OF   STATE   LAWS.  43 

nesses.  It  is  provided  that  condi- 
tional sale  contracts  shall  be  in- 
dexed the  same  as  chattel  mort- 
gages, and  this  has  given  rise  to 
some  confusion  among  the  filing 
officers.  The  only  safe  rule  to  fol- 
low where  it  is  desired  to  have  a 
contract  filed,  is  to  secure  two  sub- 
scribing witnesses  to  the  vendee's 
signature,  one  of  whom  may  be 
the  salesman  for  the  vendor  if  he 
does  not  also  sign  the  contract  for 
and  on  behalf  of  the  vendor.  It  is 
not  necessary  that  either  witness 
should  prove  the  contract  by  his 
oath.  Where  the  property  cov- 
ered is  railroad  equipment,  the 
contract  must  be  in  writing  and 
must  be  acknowledged  (does  not 
state  by  whom)  and  be  recorded 
in  order  to  protect  the  vendor  as 
against  third  persons. 

OHIO,  A  conditional  sale  contract  must  be 

in  writing  signed  by  the  vendee, 
but  does  not  need  to  be  signed  by 
the  vendor,  no  witness  is  neces- 
sary. No  acknowledgment  or 
proof  is  required,  but  in  order  to 
hold  title  as  against  third  parties, 
copy  of  the  contract  must  be  filed 
and  to  it  must  be  attached  an  affi- 
davit of  the  vendor,  his  agent  or 
attorney,  stating  the  amount  of  the 
claim.  Where  the  property  cov- 
ered is  railroad  equipment,  the 
contract  must  be  recordeed  or  filed 
to  protect  the  vendor  as  against 


44 


OKLAHOMA. 


OREGON, 


CONDITIONAL  SALES. 

third    parties.      No    acknowledg- 
ment or  proof  is  required, 

A  conditional  sale  contract  must  be 
in  writing  signed  by  the  vendee, 
but  does  not  need  to  be  signed  by 
the  vendor.  In  order  to  hold  title 
as  against  third  parties,  the  con- 
tract or  a  copy  thereof  must  be 
filed.  It  is  not  necessary  that  the 
contract  be  acknowledged  by  the 
vendee  or  vendor,  nor  that  it  be 
either  signed  or  proven  by  a  sub- 
scribing witness  or  witnesses  to 
the  vendee's  signature  in  order  to 
be  so  filed.  Where  the  property 
covered  is  railroad  equipment  the 
contract  must  be  in  writing  exe- 
cuted by  the  parties  thereto  and 
duly  acknowledged  by  the  vendee 
or  proved  as  deeds  of  real  estate 
are  required  to  be  proved  and  be 
recorded. 

A  conditional  sale  contract  must  be 
in  writing  signed  by  the  vendee, 
but  does  not  need  to  be  signed  by 
the  vendor.     No  witness  is  neces- 

.  sary,  and  no  acknowledgment  or 
proof  is  required.  So  long  as  the 
property  in  question  is  not  at- 
tached to  real  estate  so  as  to  be- 
come a  fixture  thereto,  the  con- 
tract does  not  need  to  be  recorded 
or  filed  in  order  to  hold  title  as 
against  all  third  persons.  Where, 
however,  the  property  is  thereafter 
so  attached  to  real  estate  as  to  be- 


DIGEST  OF   STATE   LAWS.  45 

come  a  fixture,  the  said  contract 
shall  be  void  as  to  any  purchaser 
or  mortgage  of  such  real  property, 
unless  within  ten  days  after  such 
attachment  a  memorandum  of  the 
sale  stating  its  terms  and  condi- 
tions, together  with  a  description 
of  the  personal  property  sufficient 
to  identify  it,  signed  by  the  ven- 
dor and  vendee,  with  notice  en- 
dorsed thereon  or  attached  there- 
to, signed  by  the  vendor  or  his 
agent,  describing  such  real  prop- 
erty shall  be  filed.  Where  the 
property  covered  by  the  contract 
is  railroad  equipment,  same  must 
be  acknowledged  by  the  vendee 
and  be  recorded. 

PENNSYLVANIA,  A  conditional  sale  contract  in  writ- 

ing is  enforceable  between  the  par- 
ties thereto  without  recording  or 
filing  or  acknowledgment  or  proof 
and  no  witness  is  required.  Where 
the  property  is  not  attached  or  to 
be  attached  to  real  estate,  in  order 
that  protection  may  be  secured 
against  third  parties,  the  contract 
should  be  in  the  form  of  a  lease  or 
bailment  with  option  to  purchase, 
which  does  not  require  a  subscrib- 
ing witness  and  need  not  be  ac- 
knowledged or  proved  or  filed  or 
recorded.  Such  instrument  is 
valid  as  against  all  third  persons 
with  the  possible  exception  of  a 
landlord's  lien  for  rent  upon  the 
premises  where   such   property  is 


46 


CONDITIONAL  SALES. 


RHODE  ISLAND, 


placed.  Where  the  property  is  at- 
tached or  to  be  attached  to  real 
estate  a  conditional  sale  contract 
in  writing  may  be  used  and  must 
be  recorded.  Where  the  property 
covered  is  railroad  equipment,  the 
contract  must  be  in  writing,  be  ac- 
knowledged (does  not  state  by 
whom)  and  be  recorded  in  order  to 
protect  the  vendor  as  against  third 
persons. 

A  conditional  sale  contract  should  be 
in  writing  signed  by  the  vendee, 
but  need  not  be  signed  by  the  ven- 
dor. No  witness  is  necessary. 
The  contract  need  not  be  acknowl- 
edged or  proved,  or  filed,  or  rec- 
orded, in  order  to  hold  title  as 
against  third  persons.  Where  the 
property  covered  is  railroad  equip- 
ment, in  order  to  protect  vendor 
as  against  third  persons,  the  con- 
tract must  be  in  writing,  executed 
by  all  parties  thereto,  and  be  duly 
acknowledged  by  the  vendee  or 
proven  in  the  same  manner  as 
deeds  of  real  estate  are  proven  and 
be  recorded. 


SOUTH  CAROLINA, 


A  conditional  sale  contract  must  be 
in  writing  signed  by  the  vendee, 
but  need  not  be  signed  by  the  ven- 
dor. In  order  to  hold  title  as 
against  third  parties  the  contract 
must  be  recorded  or  filed.  There 
is  no  provision  for  acknowledg- 
ment   in    person    by    the    vendee. 


DIGEST  OF   STATE   LAWS.  47 

Every  contract  should  be  signed 
by  two  subscribing  witnesses  to 
vendee's  signature.  Where  the 
amount  of  such  contract  is  $100.00 
or  less,  it  may  then  be  filed,  and 
it  is  not  necessary  that  such  sub- 
scribing witnesses  prove  the 
same  by  oath ;  where  the 
amount,  of  such  contract  is  more 
than  $100.00  the  contract  must  be 
recorded,  and  before  it  may  be  so 
recorded  it  is  necessary  that  one 
subscribing  witness  make  oath 
that  he  saw  the  contract  duly  ex- 
ecuted by  the  vendee.  Such  wit- 
ness may  be  the  salesman  for  the 
vendor,  provided  he  does  not  also 
execute  the  contract  for  and  on  be- 
half of  the  vendor;  if  he  does  so 
sign  it  for  the  vendor  he  should 
secure  two  disinterested  third 
parties  to  sign  as  witnesses  to  the 
vendee's  signature.  Where  the 
property  covered  is  railroad  equip- 
ment the  contract  must  be  in  writ- 
ing, signed  by  all  parties  thereto 
and  must  be  recorded  to  protect 
the  vendor  as  against  third  parties. 
In  order  that  same  may  be  so  rec- 
orded, the  vendee's  signature  must 
be  proved  by  a  subscribing  wit- 
ness. 

SOUTH  DAKOTA,  A  conditional  sale  contract  must  be 

in  writing,  signed  by  the  vendee, 
but  need  not  be  signed  by  the  ven- 
dor. No  acknowledgment  by  ven- 
dee is  required.     In  order  to  hold 


48  CONDITIONAL  SALES. 


title  as  against  third  parties  the 
contract  must  be  filed.  The  chat- 
tel mortgage  law  expressly  pro- 
vides that  before  a  mortgage  may 
be  filed  it  must  be  signed  by  two 
witnesses  to  the  mortgagor's  sig- 
nature, but  does  not  require  that 
the  witnesses  shall  prove  the  con- 
tract by  their  oaths.  It  has  been 
held  by  court  decisions  that  chat- 
tel mortgages  and  conditional  con- 
tracts of  sale,  are  in  legal  effect  of 
the  same  nature.  This  has  given 
rise  to  some  confusion,  as  to 
whether  or  not  two  subscribing 
witnesses  to  the  vendee's  signa- 
ture are  required  on  a  conditional 
sale  contract,  in  order  that  it  may 
be  filed.  From  the  best  authority 
obtainable  it  does  not  seem  that 
the  witnesses  are  absolutely  es- 
sential, but  many  recording  offi- 
cers refuse  to  file  the  contract 
without  the  two  subscribing  wit- 
nesses' signatures  upon  it,  and 
they  should,  therefore,  be  secured 
if  possible.  One  of  the  witnesses 
may  be  the  agent  for  the  vendor 
who  takes  the  contract,  if  he  does 
not  also  sign  the  said  contract  for 
and  on  behalf  of  the  vendor. 
Where  the  property  covered  is 
railroad  equipment  the  contract 
must  be  in  writing  and  to  protect 
the  vendor  as  against  third  parties, 
same  must  be  acknowledged  (does 
not  state  by  whom)  and  be  rec- 
orded. 


DIGEST  OF   STATE   LAWS. 


49 


TENNESSEE, 


TEXAS, 


UTAH, 


A  conditional  sale  contract  must  be 
in  writing,  signed  by  the  vendee, 
but  does  not  need  to  be  signed  by 
the  vendor.'  No  witness  is  re- 
quired. It  is  not  necessary  to  ac- 
knowledge or  prove,  or  file,  or  rec- 
ord, such  a  contract  in  order  to 
hold  title  in  vendor  as  against 
third  persons.  Where  the  prop- 
erty covered  is  railroad  equipment 
the  contract  must  be  in  writing,  be 
acknowldeged  by  the  vendee  in 
person,  and  be  recorded. 

A  conditional  sale  contract  must  be 
in  writing,  signed  by  the  vendee, 
but  need  not  be  signed  by  the  ven- 
dor. In  order  to  hold  title  in  ven- 
dor as  against  third  parties,  the 
contract  must  be  filed.  Where  the 
original  instrument  is  sent  for  fil- 
ing, then  no  witness  to  the  ven- 
dee's signature  is  required,  but 
where  a  copy  of  such  contract  is 
used  for  filing,  the  original  must 
have  been  witnessed  by  two  per- 
sons, or  have  been  acknowledged 
by  the  vendee.  Where  the  prop- 
erty covered  is  railroad  equipment 
the  contract  must  be  in  writing 
and  must  be  recorded.  There 
seems  to  be  no  requirement  for  ac- 
knowledgement or  proof. 

A  conditional  sale  contract  must  be 
in  writing,  signed  by  the  vendee, 
but  does  not  need  to  be  signed  by 
the    vendor.      No    witness    is    re- 


50 


CONDITIONAL  SALES. 


VERMONT, 


VIRGINIA, 


quired.  The  contract  does  not 
need  to  be  acknowledged  or 
proved  or  filed,  or  recorded,  in  or- 
der to  hold  title  as  against  third 
parties.  Where  the  property  cov- 
ered is  railroad  equipment  the  con- 
tract must  be  in  writing,  executed 
by  all  parties  thereto,  and  in  or- 
der that  the  vendor's  title  shall  be 
protected,  it  must  be  acknowl- 
edged by  the  vendee  in  person  and 
be  recorded. 

A  conditional  sale  contract  must  be 
in  writing,  signed  by  the  vendee, 
but  need  not  be  signed  by  the  ven- 
dor. No  witness  is  required  and 
the  contract  need  not  be  acknowl- 
edged or  proved,  but  in  order  to 
hold  title  as  against  third  parties, 
the  original  contract  must  be  rec- 
orded. Where  the  property  cov- 
ered is  railroad  equipment  the 
contract  must  be  in  writing  exe- 
cuted by  all  parties  thereto,  and  in 
order  to  protect  the  vendor  as 
against  third  persons,  said  con- 
tract must  be  acknowledged  by 
the  vendee,  or  be  proved  as  deeds 
of  real  estate  are  required  to  be 
proved  and  shall  be  recorded. 

A  conditional  sale  contract  must  be 
in  writing  signed  by  all  parties 
thereto.  No  witness  is  necessary 
and  no  acknowledgment  is  re- 
quired. In  order  to  hold  title  as 
against  third  parties  a  memoran- 
dum of  the  contract  must  be  dock- 


DIGEST   OF   STATE   LAWS.  5^ 

eted.  The  original  contract  should 
be  sent  to  the  recording  officer, 
who  takes  the  necessary  memo- 
randum from  it.  Most  recording 
officers  accept  a  certified  or  sworn 
copy,  but  where  the  original  is  de- 
manded it  must  be  sent.  The  con- 
tract must  be  so  drawn  that  the 
clerk  can  take  from  it  for  his  mem- 
orandum these  six  essential  items: 
(i)  Date  of  contract,  (2)  amount 
due  thereon,  (3)  when  payable, 
(4)  how  payable,  (5)  a  brief  de- 
scription of  the  goods  or  chattels, 
(6)  names  of  vendor  and  vendee. 
Where  the  property  covered  is 
railroad  equipment  the  contract 
must  be  acknowledged  by  the  ven- 
dee in  the  same  manner  as  a  deed 
of  real  estate,  is  required  to  be  ac- 
knowledged and  be  recorded. 

WASHINGTON,  A  conditional  sale  contract  must  be 

in  writing  signed  by  all  parties 
thereto.  No  witness  is  necessary 
and  no  acknowledgment  or  proof 
is  required.  In  order  to  hold  title 
as  against  third  parties,  the  con- 
tract or  a  memorandum  thereof 
must  be  filed  within  ten  days  after 
the  vendee  takes  possession. 
Where  the  property  covered  is 
railroad  equipment  the  contract 
must  be  acknowledged  by  the  ven- 
dee in  the  same  manner  as  a  deed 
of  real  estate  and  must  be  record- 
ed to  protect  the  vendor  as  against 
third  parties. 


52 


CONDITIONAL  SALES. 


WEST  VIRGINIA, 


WISCONSIN, 


A  conditional  sale  contract  must  be 
in  writing  signed  by  vendee,  but 
does  not  need  to  be  signed  by  ven- 
dor. No  witness  is  necessary  and 
no  acknowledgment  or  proof  is 
required.  In  order  to  hold  title  as 
against  third  parties,  a  notice  of 
the  reservation  must  be  recorded 
and  such  notice  may  be  signed  by 
the  vendor.  Where  the  property 
covered  is  railroad  equipment  the 
contract  must  be  in  writing  and 
must  be  recorded  to  protect  the 
vendor  as  against  third  persons. 
Does  not  state  by  whom  it  must 
be  signed,  nor  that  it  must  be  ac- 
knowledged or  proven  in  order  to 
be  so  recorded. 

A  conditional  sale  contract  must  be 
in  writing,  signed  by  all  parties 
thereto,  and  where  the  property 
sold  is  household  furniture  a  copy 
of  the  instrument  must  be  deliv- 
ered to  the  vendee  at  the  time  of 
making  the  sale,  and  any  pay- 
ments made  must  be  endorsed  on 
said  copy  if  the  vendee  so  re- 
quests. No  witness  is  necessary, 
and  no  acknowledgment  is  re- 
quired. In  order  to  hold  title  as 
against  third  parties  a  copy  of  the 
contract  must  be  filed.  Where  the 
property  covered  is  railroad  equip- 
ment the  contract  must  be  in  writ- 
ing and  in  order  to  protect  the 
vendor  as  against  third  parties, 
same  must  be  recorded.    There  is 


DIGEST  OF   STATE   LAWS.  53 

no  provision  for  acknowledgment 
or  proof. 

WYOMING.  A  conditional  sale  contract  must  be 

in  writing,  signed  by  the  vendee, 
but  does  not  need  to  be  signed  by 
the  vendor.  No  witness  is  re- 
quired and  no  acknowledgment  is 
necessary.  In  order  to  hold  title 
as  against  third  parties  the  con- 
tract must  be  filed.  This  may  be 
done  by  sending  a  copy,  to 
which  must  be  attached  an  affi- 
davit of  the  vendor,  his  agent  or 
attorney,  which  states  the  names 
of  such  vendor  and  vendee,  or  les- 
sor and  lessee,  and  gives  a  descrip- 
tion of  the  property,  with  the  full 
and  true  interest  of  the  vendor  or 
lessor  therein.  Where  the  prop- 
erty is  railroad  equipment  the  con- 
tract must  be  signed  by  all  parties 
thereto,  be  acknowledged  by  the 
vendee  in  person  and  must  be  rec- 
orded to  protect  the  vendor  as 
against  third  parties. 


54 


CONDITIONAL  SALES. 


PART  IV. 

State  Laws. 

ALABAMA. 


Legal  Status  of  Conditional  Sale  Contracts. 

Conditional  contracts  of  sale  are  provided  for  by  statute 
law  in  this  state.  Civil  Code  of  1907,  §§  3393,  33941  Elmore 
V.  Fitzpatrick,  56  Ala.  400;  Jones  v.  Pullen,  66  Ala.  306;  Fair- 
banks, Morse  &  Co.  v.  Eureka  Co.,  67  Ala.  109;  Hill  v.  Town- 
send  and  one,  69  Ala.  286;  Fields  v.  Williams,  91  Ala.  502,  8 
So.  808;  Weinstein  v.  Freyer,  93  Ala.  257,  9  So.  285;  Bingham 
V.  Vandergrift,  93  Ala.  283,  9  So.  280;  Seymour  v.  Farquhar, 
93  Ala.  292,  8  So.  466 ;  Piedmont,  etc.  Co.  v.  Thompson- 
Houston  Motor  Co.,  12  So.  768  (No  Ala.  Cit.)  ;  Bent  v.  Jerkins, 
112  Ala.  485,  20  So.  655;  Cole  v.  Probst  Brothers,  119  Ala.  99, 
24  So.  884;  Riley  v.  Dillon  and  one,  148  Ala.  283,  41  So.  768; 
Hall  v.  Nix,  156  Ala.  423,  47  So.  335;  Stowers  Furniture  Co. 
V.  Brake.  158  Ala.  639,  48  So.  89;  Bass,  Heard,  Howie  Co.  v. 
International  Harvester  Co.  of  America,  169  Ala.  154,  53  So. 
1014;  Diamond  Rubber  Co.  v.  4th  National  Bank,  171  Ala. 
420,  55  So.  100;  McEntire  Wagnon  &  Thomas  Co.  v.  Rock 
Hill  Buggy  Co.,  172  Ala.  637,  55  So.  494;  Vinegar  Bend  Lbr. 
Co.  V.  Soule  Steam  Feed  Works,  182  Ala.  146,  62  So.  279;  In 
re:  Priegle  Paint  Co.,  175  Fed.  586;  In  re:  Dancy  Hardware 
8c  Furniture  Co.,  198  Fed.  336. 

How  Executed. 

They  must  be  in  writing  signed  by  the  vendee,  but  do  not 
need  to  be  signed  by  the  vendor,   the  accej^tance  of   such   a 

55 


56  CONDITIONAL  SALES. 

contract  on  the  part  of  the  vendor  by  acting  upon  it,  or 
shipping  the  goods,  being  sufficient  to  make  a  binding  con- 
tract as  between  the  parties  thereto.  There  is,  however,  no 
objection  to  the  contract  being  formally  signed  and  accepted 
by  the  vendor. 

Acknowledgment  or  Proof. 

Such  a  contract  is  valid  as  between  the  parties  thereto 
without  further  formality  in  the  way  of  acknowledgment  or 
proof,  or  filing  or  recording;  but  in  order  to  make  it  valid  and 
to  hold  title  as  against  purchasers  for  valuable  consideration, 
mortgagees  and  attachment  creditors  it  is  necessary  that  same 
should  be  recorded.  The  instrument  need  not  be  acknowl- 
edged by  the  vendee  or  vendor,  nor  be  signed  or  proven  by 
a  subscribing  witness  in  order  to  be  so  recorded.  Civil  Code 
of  1907,  §  3373. 

Recording  or  Filing. 

Where  the  contract  has  been  duly  executed  by  the  vendee 
and  the  property  covered  thereby  is  withm  the  state  when 
such  contract  is  made,  it  is  necessary  in  order  to  hold  title 
as  against  purchasers  for  valuable  consideration,  mortgagees 
and  judgment  creditors  without  notice  thereof,  that  the 
original  should  be  recorded  (there  is  no  provision  for  filing) 
with  the  Judge  of  Probate  of  the  county  where  the  party 
securing  possession  of  the  property  resides.  There  is  no  time 
limit,  but  the  record  should  be  made  if  possible  before  vendee 
secures  possession. 

In  case  the  property  is  removed  at  any  time  to  another 
county  than  that  in  which  it  is  first  delivered,  the  contract 
must  be  recorded  in  such  county  within  three  months  after 
such  removal. 

When  property  is  brought  into  the  state  subject  to  such 
contract,  then  same  must  be  recorded  within  three  months 
thereafter  with  the  Probate  Judge  of  the  county  where  said 
property  is  brought  and  remains. 


ALABAMA.  57 

Provided  that  in  counties  having,  according  to  the  last 
federal  census  or  according  to  any  succeeding  federal  census, 
a  population  of  more  than  80,000  inhabitants  such  contracts 
of  less  than  two  hundred  ($200.00)  dollars  in  amount  need 
not  be  filed  for  record.  This  exempts  Jefferson,  Mobile  and 
Montgomery  counties  where  the  amount  involved  is  less  than 
two  hundred  ($200.00)  dollars.  All  other  contracts  must  be 
recorded.  Civil  Code  of  1907,  §§  2>?>7Z  and  3394  as  Amended 
by  General  Laws  of  191 1,  pages  115-116.  Brandon  Printing 
Press  Co.  v.  Bostick,  126  Ala.  247,  28  So.  705;  Pulaski  Mule 
Co.  v.  Haley  and  one,  187  Ala.  533,  65  So.  783. 

Recording  Fee. 

The  fee  to  the  recording  officer  is  fifteen  cents  per  folio 
of  one  hundred  words.  In  addition  to  this  a  tax  of  fifteen 
cents  must  be  paid  for  each  one  hundred  ($100.00)  dollars  or 
fraction  thereof,  of  the  contract  amount.  Civil  Code  of  1907, 
§  3720,  as  amended  by  General  Laws  of  191 1,  pages  156-157. 
Political  Code  of  1907,  §  2082,  Sub-division  7. 

Re-Recording  or  Renewal. 

The  contract  is  valid  for  the  term  of  six  years.  There  is 
no  provision  for  re-recording  or  renewal. 

Discharge. 

There  is  provision  for  discharge  of  the  contract  from 
record  upon  payment,  and  within  two  months  after  demand 
in  writing  by  vendee  or  his  representative.  The  method  of 
discharge  is  an  entry  to  that  effect  upon  the  margin  of  the 
record  by  the  vendor  or  his  representative;  and  a  civil  penalty 
of  two  hundred  ($200.00)  dollars  is  imposed  for  failure  to 
comply.     Civil  Code  1907,  §4900. 

Criminal  Liability  of  Vendee. 

It  is  a  crime  and  punishable  the  same  as  larceny,  to  dis- 
pose of  or  to  buy  with  knowledge  any  property  covered  by 


58  CONDITIONAL  SALES. 

a  conditional  contract  of  sale,  whether  said  contract  be  re- 
corded or  not.     Criminal  Code  1907,  §§  7324,  7325,  7342. 

Loss,  Who  Must  Bear. 

If  property  in  possession  of  a  vendee  under  conditional 
contract  of  sale  is  injured  or  destroyed  without  vendee's  fault, 
before  full  payment  is  made,  the  title  is  held  to  be  in  vendor 
and  he  cannot  thereafter  enforce  payment  of  the  balance, 
unless  the  contract  expressly  makes  vendee  liable.  Bishop  v. 
Minderhout  and  one,  128  Ala.  162,  29  So.  11 ;  Blue  v.  American 
Soda  Fountain  Co.,  150  Ala.  165,  43  So.  709;  Hoobler  v.  Inter- 
national Harvester  Co.,  185  Ala.  533,  64  So.  567. 

Fixtures. 

The  effect  produced  by  fastening  to  a  building-  property 
sold  under  conditional  contract  of  sale  is  not  determined.  The 
probability  is,  however,  that  where  such  a  contract  exists  and 
the  property  is  capable  of  removal,  it  can  be  taken  possession 
of  if  the  contract  payments  are  not  made,  and  especially  so 
if  the  contract  is  recorded  before  the  property  becomes  a 
fixture.  Wood  et  al.  v.  Holly  Mfg.  Co.,  100  Ala.  326,  13  So. 
948;  Warren  v.  Liddell,  no  Ala.  232,  20  So.  89. 

Landlord's  Lien 

A  landlord's  lien  for  rent  of  the  building  in  which  such 
property  may  be  placed  would  seem  to  be  prior  to  the  contract 
of  conditional  sale,  unless  the  contract  in  question  be  recorded 
before  the  property  is  moved  upon  his  premises.  Civil  Code 
1907,  §  4747.     Glass  V.  Tisdale,  106  Ala.  581,  19  So.  70. 

Notes. 

The  giving  of  notes  under  a  conditional  sale  contract  does 
not  ordinarily  supersede  such  contract,  and  is  only  a  con- 
venient method  of  evidencing  deferred  payments.  If,  however, 
too  great  a  part  of  the  contract  is  included  in  the  notes  it  may 
become  necessary    to  record  same,  and  the  notes  are  made 


ALABAMA.  59 

non-negotiable.  Seymour  v.  Farquhar,  93  Ala.  292,  8  So.  466; 
Ensley  Lumber  Co.  et  al.  v.  Lewis,  121  Ala.  94,  25  So.  729; 
Thomason  et  al.  v.  Lewis,  103  Ala.  426,  15  So.  830. 

Election  of  Remedies. 

The  law  is  not  definitely  settled  as  to  whether  or  not  a 
vendor  may  bring  action  for  a  money  judgment  and  if  unable 
to  collect  by  this  method,  can  thereafter  replevin  the  property, 
but  the  trend  of  decisions  is  to  the  effect  that  such  judgment 
may  be  recovered  and  if  no  levy  is  made  upon  the  property 
covered  by  the  conditional  contract,  or  sale  thereof  had,  the 
vendor  may  thereafter  bring  action  for  possession  in  case  the 
money  judgment  is  not  paid.  If,  however,  such  property  be 
levied  upon  under  execution  or  attachment  by  the  vendor  and 
is  sold  he  cannot  thereafter  maintain  a  replevin  action  for 
possession  of  the  property.  The  contract  should  always 
expressly  provide  that  vendor  may  pursue  all  legal  remedies 
to  collect  the  purchase  price,  and  if  unsuccessful  may  still 
retake  the  property.  Tanner,  etc.,  Engine  Co.  v.  Hall,  89  Ala. 
628,  7  So.  187;  Montgomery  Iron  Works  v.  Smith,  98  Ala.  644, 
13  So.  525;  Thomason  et  al.  v.  Lewis,  103  Ala.  426,  15  So.  830; 
Hickman  v.  Richburg,  122  Ala.  638,  26  So.  136.  See  also  Davis 
V.  Millings,  141  Ala.  378,  37  So.  737;  Forbs  Piano  Co.  v. 
Wilson,   144  Ala.  586,  39  So.  645. 

Re-Possession  and  Refund, 

There  seems  to  be  no  requirement  for  a  refund  upon  re- 
possession.    Riley  v.  Dillon  and  one.   148  Ala.  283,  41   So.  768. 

Railroad  Equipment. 

Railroad  equipment  ma}-  be  sold  under  conditional  con- 
tract of  sale  which  must  be  in  writing  and  the  original  re- 
corded within  three  months  after  the  making  thereof  in  the 
office  of  the  Probate  Judge  for  the  county  where  such  railroad 
shall  have  its  principal  place  of  business  within  the  state,  and 
if    no   office    or    principal    place    of    business    exists    within    the 


6o  CONDITIONAL  SALES. 

State,  then  in  the  office  of  the  Secretary  of  State,  and  all  cars, 
engines,  etc.,  must  have  plainly  marked  thereon  the  name  of 
the  vendor,  lessor,  or  hirer,  as  the  case  may  be.  Fees  for 
recording  are  15  cents  for  each  100  words.  Civil  Code  1907, 
§§  577.  3393- 


ARIZONA. 


Legal  Status  of  Conditional  Sale  Contracts. 

Conditional  contracts  of  sale  are  recognized  by  statute 
law  in  this  state.     Revised  Statutes,  §  3278. 

How  Executed. 

They  must  be  in  writing  signed  by  all  parties  thereto. 

Acknowledgment  or  Proof. 

Such  a  contract  where  the  term  is  less  than  three  months 
does  not  need  to  be  acknowledged  or  proved,  nor  filed  or  rec- 
orded; but  where  the  period  covered  is  for  three  months  or 
more,  then  if  the  original  owner  would  be  protected  as  against 
all  third  parties,  with  the  exception  of  those  having  actual  no- 
tice, the  contract  must  be  filed.  Where  the  original  is  sent 
no  acknowledgment  is  required,  but  if  a  copy  shall  be  used 
then  the  original  must  have  been  acknowledged  by  vendee. 
Revised  Statutes,  §§  3278,  4126,  4127.  National  Cash  Register 
Co.  v.  Bradbury,  12  Ari.  99,  95,  Pac.  180. 

Recording  or  Filing. 

The  law  in  this  state  provides  for  filing  the  contract,  but 
makes  no  mention  of  recording.  The  filing  officer  is  the 
county  recorder  of  the  county  where  the  property  is  located, 
and  if  vendee  be  a  resident  of  the  state  then  a  like  filing  shall 
be  made  with  the  recorder  of  the  county  where  such  vendee 
resides.  Care  should  be  taken  where  two  filings  are  neces- 
sary, and  the  vendee's  acknowledgment  should  be  secured,  or 

61 


62  CONDITIONAL  SALES. 

duplicate  originals  should  be  executed.  The  time  for  filing  is 
stated  to  be  forthwith  after  the  contract  has  been  accepted, 
and  should  certainly  be  done  before  vendee  gets  possession  if 
possible.     Revised  Statutes,  §§  3278,  4126,  4127. 

Recording  Fee. 

The  fee  to  the  county  recorder  for  filing  such  a  contract 
is  seventy-five  cents.     Revised  Statutes,  §  3198. 

Re-Recording  or  Renewal. 

A  conditional  contract  of  sale  is  valid  for  the  term  of  four 
years ;  there  is  no  provision  for  re-recording  or  renewal. 

Discharge. 

There  is  provision  for  discharging  a  chattel  mortgage  af- 
ter payment,  but  none  for  a  conditional  sale  contract.  Revised 
Statutes,  §  4130. 

Criminal  Liability  of  Vendee. 

There  is  provision  making  it  a  felony  to  sell  or  dispose  of 
chattel  mortgaged  property,  but  none  for  conditional  sale  con- 
tract.    Penal  Code,  §§  140-143. 

Loss,  Who  Must  Bear. 

No  cases  found. 

Fixtures. 

No  cases  found. 

Landlord's  Lien. 

There  seems  to  be  no  provision  that  a  landlord  shall  have 
a  lien  for  rent  upon  property  found  on  his  premises. 


ARIZONA,  63 

Notes. 

No  cases  found. 

Election  of  Remedies. 

No  cases  found. 

Re-Possession  and  Refund. 

No  cases  found. 

Railroad  Equipment. 

Railroad  or  street  railway  equipment  or  rolling  stock  may 
be  sold  under  conditional  sale  contract  or  lease  with  option 
to  purchase.  In  order  that  vendor  may  be  protected  as  against 
any  subsequent  creditor,  lien  holder,  or  any  subsequent  bona 
fide  purchaser  for  value  and  without  notice,  the  instrument 
must  be  executed  by  all  parties  thereto  and  be  duly  acknowl- 
edged by  the  vendee  or  lessee  or  bailee,  or  be  duly  proved 
before  some  person  authorized  by  law  to  take  acknowledgment 
of  deeds.  It  shall  then  be  filed  for  record  with  the  Secretary 
of  State,  and  must  be  paid  in  full  within  ten  years  from  date, 
and  each  payment  must  be  noted  on  the  margin  of  the  record. 
Each  locomotive  engine  or  car  so  sold  shall  have  the  name  of 
the  vendor,  lessor  or  bailor  plainly  marked  on  each  side  thereof 
followed  by  the  word  "owner"  or  "lessor"  or  "bailor,"  as  the 
case  may  be.  Such  property  shall  be  liable  for  any  repairs 
made  upon  it,  and  for  any  taxes  assessed  against  it.  Such  con- 
tract shall  be  discharged  when  paid.  The  fee  for  filing  such 
contract  or  entering  discharge  is  ten  dollars  arid  a  fee  of  two 
dollars  and  fifty  cents  is  allowed  for  each  entry  made  upon  the 
margin  of  the  record.     Revised  Statutes,  §§  3280,  3281. 


64  CONDITIONAL  SALES. 

Forms. 

ACKNOWLEDGMENT  BY  INDIVIDUAL. 
State  of  Arizona. 


County  of  Pinal.  '' 

This  instrument  was  acknowledged  before  me  this   12th 
day  of  July,  1917,  by  Fred  J.  Jones. 

Miles  E.  Stone, 

Notary  Public  in  and  for . 

notarial  ) 
seal.      I 

My  commission  expires  June  16,  1918. 


ACKNOWLEDGMENT  BY  CORPORATION. 
State  of  Arizona, 


County  of  Pinal. 

This  instrument  was  acknowledged  before  me  this  12th 
day  of  July,  1917,  by  Story  M.  Ford  as  president  of  the  Mill 
Supply  Company. 

Miles  E.  Stone, 
Notary  Public  in  and  for . 

My  commission  expires  June  16,  1918. 


Officers  Before  JVhom  Acknowledgments  May  Be  Taken. 

Within  the  State.  A  clerk  of  a  court  having  a  seal,  a  notary 
public,  a  county  recorder,  a  justice  of  the  peace. 

Without  the  State  but  Within  the  United  States.  A  clerk  of 
a  court  of  record  having  a  seal,  a  commissioner  of  deeds  for 
Arizona,  a  notary  public. 


ARKANSAS. 


Legal  Status  of  Conditional  Sale  Contracts. 

Where  property  other  than  railroad  equipment  is  delivered 
in  Arkansas  under  conditional  sale  contract,  there  is  no  statute 
law  governing  the  transaction ;  but  the  court  decisions  estab- 
lish the  rule,  that  such  a  contract  is  valid  without  recording 
or  filing  as  against  all  third  parties,  except  where  the  property 
covered  thereby  becomes  an  irremovable  fixture  upon  real 
estate.  Digest  of  Statutes,  §§  6678-6680.  Andrews  v.  Cox,  42 
Ark.  473;  Mcintosh  &  one  v.  Hill,  47  Ark.  363,  i  S.  W.  680; 
McRea  et  al.  v.  Merrifield,  48  Ark.  160,  2  S.  W.  780;  Simpson 
v.  Shackelford,  49  Ark.  63,  4  S.  W.  165  ;  Dedman  v.  Earle,  52 
Ark.  164,  12  S.  W.  330;  Cincinnati  Safe  Company  v.  Kelly  et  al, 
54  Ark.  476,  16  S.  W.  263;  Morris  v.  Cohn,  55  Ark.  401,  17  S. 
W.  342;  Ames  Iron  Works  v.  Rea,  56  Ark.  450,  19  S.  W.  1063; 
Sunny  South  Lumber  Co.  v.  Neimeyer  Lumber  Co.,  63  Ark. 
668,  38  S.  W.  902 ;  Public  Parks  Am.  Co.  v.  Embree,  etc.,  Co., 
64  Ark.  29,  40  S.  W.  582;  Little  Rock  Vehicle,  etc.,  Co.  v. 
Robinson,  75  Ark.  548,  87  S.  W.  1029;  Hyatt  v.  Bell,  83  Ark. 
360,  103  S.  W.  748;  Bell  v.  Old,  88  Ark.  99,  113  S  .W.  1023; 
Brownfield  v.  Jones  Co.,  98  Ark.  495,  136  S.  W.  664;  Watkins 
V.  Curry,  103  Ark.  414,  147  S.  W.  43 ;  Hollenberg  Music  Co.  v. 
Bankston,  107  Ark.  337,  154  S.  W.  1139;  Fox  et  al  v.  Delaney 
et  al.  Ill  Ark.  640,  163  S.  W.  157;  Geiser  Mfg.  Co.  v.  Davis, 
122  Ark.  193,  182  S.  W.  557:  In  re:  Lutz,  197  Fed.  492. 

How  Executed. 

They  should  be  in  writing  signed  by  the  vendee,  but  do 
not  need  to  be  signed  by  the  vendor,  the  acceptance  of  such  a 
contract  on  the  part  of  the  vendor  by  acting  upon  it  or  shipping 

65 


(^  CONDITIONAL  SALES. 

the  goods  being  sufficient  to  make  a  binding  contract  as  be- 
tween the  parties  thereto.  There  is,  however,  no  objection  to 
the  contract  being  formally  signed  and  accepted  by  the 
vendor. 

Acknowledgment  or  Proof. 

In  all  commercial  transactions  such  a  contract  is  valid  as 
to  all  parties  without  acknowledgment  or  proof,  with  the  pos- 
sible exception  that  where  the  property  covered  thereby  be- 
comes an  irremovable  fixture  upon  real  property  it  cannot  be 
repossessed. 

Recording  or  Filing. 

The  contract  is  valid  for  the  term  of  five  years  and  does 
not  need  to  be  either  recorded  or  filed  to  hold  title  as  against 
all  third  persons  with  the  fixture  exception,  as  stated  above. 
There  is  no  provision  in  any  case  for  recording  or  filing. 

Recording  Fee. 

No  fee  is  provided. 

Re-Recording  or  Renewal. 

No  provision. 

Discharge. 

As  there  is  no  provision  for  recording  or  filing  so  there  is 
no  requirement  for  discharge. 

Criminal  Liability  of  Vendee. 

It  is  a  crime  to  dispose  of  or  receive  property  on  which  a 
lien  exists  by  chattel  mortgage,  or  deed  of  trust,  punishable 
on  conviction  by  imprisonment  in  the  penitentiary  for  not  less 
than  six  months  or  more  than  two  years,  if  the  value  of  the 
property  is  over  $10.00,  and  by  a  fine  of  not  less  than  $10.00 


ARKANSAS.  67 

nor  more  than  $50.00  where  the  value  of  the  property  is  $10.00 
or  less.  This  law  does  not  expressly  apply  to  conditional  sale 
contracts,  but  seems  broad  enough  to  include  them.  Digest 
of  Statutes,  §  201 1,  2013. 

Loss,  Who  Must  Bear. 

Where  property  delivered  under  conditional  contract  of 
sale  is  destroyed  while  in  vendee's  possession  and  before  pay- 
ment, this  does  not  render  void  the  obligation  to  pay.  Phillips 
V.  Hollenberg  Music  Co.,  82  Ark.  9,  99  S.  W.  1105 ;  Hollenberg 
Music  Co.  V.  Barron,  100  Ark.  403,  140  S.  W.  582. 

Fixtures. 

Where  property  delivered  under  conditional  contract  of 
sale  has  been  fastened  to  a  building  in  such  a  manner  that  it 
can  be  removed  without  material  injury  to  the  building  or  to 
itself,  it  may  be  repossessed  if  the  price  is  not  paid.  Where, 
however,  it  has  been  attached  to  a  building  in  such  a  manner 
as  to  become  an  irremovable  fixture,  and  the  rights  of  innocent 
third  parties  are  involved  the  remedy  is  in  doubt.  Choate  v, 
Kimball,  56  Ark.  61.  19  S.  W.  108;  Bemis  v.  Bank,  63  Ark.  625, 
40  S.  W.  127;  Markle  v.  Stackhouse,  65  Ark.  23,  44  S.  W,  808; 
Tenniswood  v.  Smith,  72  x\rk.  500,  82  S.  W.  834;  Incorporated 
Town  of  Ozark  v.  Adams,  y-^  Ark.  227,  83  S.  W.  920;  Triumph 
Electric  Co.  v.  Patterson,  In  re  W.  O.  Craig  Manufacturing 
Co.,  211  Fed.  244;  Fears  v.  Watson,  187  S.  W.  178;  Peck  Ham- 
mond Co.  V.  Walnut  Ridge  School  Dist.,  93  Ark.  yy,  123  S,  W. 
771. 

Landlord's  Lien. 

There  is  no  provision  of  law  in  this  state  giving  any  land- 
lord a  lien  for  rent  on  property  found  on  his  premises. 

Notes. 

The  giving  of  notes  under  a  conditional  sale  contract  does 
not  ordinarily  supersede  such  contract,  and  is  only  a  conven- 


68  CONDITIONAL  SALES. 

ient  method  of  evidencing  deferred  payments.  The  notes  how- 
ever may  be  made  non-negotiable  by  including  terms  which 
rightfully  belong  in  the  contract.  Boozer  v,  Anderson,  42  Ark. 
167 ;  Kirby  &  Company  v.  Tompkins,  48  Ark.  273  ;  3  S.  \\\  363  ; 
Bank  of  Little  Rock  v.  Collins,  66  Ark.  240;  50  S.  W.  694;  Trip- 
lett  V.  Mansur,  etc.  Co.,  68  Ark.  230;  57  S.  W.  261 ;  Arden  Lum- 
ber Co.  V.  Henderson  Iron  Works  &  Supply  Co.,  83  Ark.  240; 
103  S.  W.  185. 

Election  of  Remedies. 

Court  decisions  in  this  state  hold  that  a  vendor  may  not 
secure  a  money  judgment  for  his  debt  and  if  unable  to  collect 
thereafter  retake  the  property,  nor  may  he  retake  the  property 
and  bring  action  later  for  the  purchase  price.  No  case  seems 
to  have  arisen  where  the  contract  expressly  gave  vendor  two 
or  more  remedies. 

Edgewood  Distilling  Co.  v.  Shannon,  60  Ark.  133,  29  S.  W. 
147;  Butler  V.  Dodson,  78  Ark.  569,  94  S.  W.  703;  Nashville 
Lumber  Co.  v.  Robinson,  91  Ark.  319,  121  S.  W.  350;  Bowser 
Furniture  Co.  v.  Johnson,  117  Ark.  496,  175  S.  W.  516;  Tan- 
ner et  al,  V.  Johnson,  119  Ark.  506,  178  S.  W.  376. 

Re-Possession  and  Refund. 

There  appears  to  be  no  requirement  in  this  state  for 
refund  upon  repossession.  Public  Parks  Amusement  Co.  v. 
Embree  etc.  Co.,  64  Ark.  29,  40  S.  W.  582 ;  Little  Rock  Vehicle 
Co.  V.  Robinson,  75  Ark.  548,  87  S.  W.  1029. 

Railroad  Equipment 

Conditional  contracts  of  sale,  or  leases,  or  bailments  with 
option  to  purchase,  covering  railroad  equipment  in  order  to  be 
valid  as  against  any  subsequent  bona  fide  purchaser  for  value 
from,  or  any  subsequent  judgment  creditor  of  the  vendee  or 
lessee  or  bailee,  must  be  in  writing,  signed  by  all  parties,  be 


ARKANSAS.  69 

acknowledged  by  vendee,  or  have  vendee's  signature  duly- 
proven,  and  be  recorded  with  the  secretary  of  state.  Every 
car,  engine,  or  other  article  so  sold  or  leased,  must  have  plainly 
marked  on  each  side  thereof,  the  name  of  the  vendor,  lessor  or 
bailor  followed  by  the  word  "Vendor,"  "Lessor,"  or  "Bailor," 
as  the  case  may  be.  Fee  for  recording  is  ten  cents  per  hundred 
words.     Digest  of  Statutes,  §§  6678-6680,  3498. 


70  CONDITIONAL    SALES    (ARKANSAS), 


CALIFORNIA. 


Legal  Status  of  Conditional  Sale  Contracts. 

There  is  no  express  statutory  provision  in  this  state  regu- 
lating conditional  contracts  of  sale,  but  their  legality  is  recog- 
nized by  the  courts  in  many  decisions.  Helm  v.  Dumars  & 
one,  3  Cal.  454;  Miller  v.  Stein,  30  Cal.  402;  Kohler  &  Hayes 
et  al  41  Cal.  455;  Hegler  v.  Eddy,  53  Cal.  597;  March  v.  Mc- 
Koy  et  al  56  Cal.  85  ;  Hendy  v.  Dinkerhofif,  57  Cal.  3 ;  Palmer 
V.  Howard,  72  Cal.  293,  13  Pac.  858;  Park  &  Lacy  Co.  v.  White 
River  Lbr.  Co.,  loi  Cal.  37,  35  Pac.  442;  Vermont  Marble 
Company  v.  Brow,  109  Cal.  236,  41  Pac.  1031 ;  Holt  Mfg.  Co. 
V.  Ewing,  109  Cal.  353,  42  Pac.  435 ;  Rodgers  v.  Bachman,  109 
Cal.  552,  42  Pac.  448;  Rayfield  v.  Van  Meter,  120  Cal.  416,  52 
Pac.  666;  Van  Allen  et  al  v.  Francis  et  al  123  Cal.  474.  56 
Pac.  339;  Kellogg  v.  Burr,  126  Cal.  38,  58  Pac.  306;  Perkins 
V.  Mettler,  126  Cal.  100,  58  Pac.  384;  Jordan  v.  Myres,  126  Cal. 
565,  58  Pac.  1061  ;  Lundy  Furniture  Co.  v.  White  et  al,  128 
Cal.  170,  60  Pac.  759;  Houser  &  one  v.  Hargrove,  129  Cal.  90, 
61  Pac.  660;  Matteson  v.  Equitable  Mining  &  Milling  Co.,  143 
Cal.  436,  yj  Pac.  144;  Liver  v.  Mills  et  al,  155  Cal.  459,  loi 
Pac.  299;  Bray  v.  Lowery,  163  Cal.  256,  124  Pac.  1004;  Boas  v. 
Knewing,  165  Pac.  690;  Shook  vs.  Levi,  240  Fed.  121. 

How  Executed. 

They  must  be  in  writing  signed  by  the  vendee  but  do 
not  need  to  be  signed  by  the  vendor,  the  acceptance  of  such 
a  contract  on  the  part  of  the  vendor  by  acting  upon  it  or  ship- 
ping the  goods  being  sufificient  to  make  a  binding  contract  as 
between  the  parties  thereto.    There  is,  however?  no  objection 

71 


y2  CONDITIONAL  SALES. 

to  the  contract  being  formally  signed  and  accepted  by  the  ven- 
dor. 

Acknowledgment  or  Proof. 

Such  a  contract  does  not  need  to  be  either  acknowledged 
or  proven  to  make  it  valid,  not  only  as  between  the  parties 
thereto,  but  as  to  all  third  persons,  even  though  these  may  be 
bona-fide  purchasers  for  value. 

Recording  or  Filing. 

It  is  not  necessary  to  either  record  or  file  a  contract  of  con- 
ditional sale  in  order  to  protect  the  vendor  as  against  all  per- 
sons. This  state,  however,  has  an  exceptionally  short  statute 
of  limitations,  being  four  years  on  all  contracts,  obligations  or 
liabilities  founded  upon  an  instrument  in  writing  executed 
within  this  state. 

Being  two  years  on  an  action,  contract,  obligation  or  li- 
ability not  founded  upon  an  instrument  in  writing,  or  founded 
upon  an  instrument  in  writing  executed  out  of  the  state.  Code 
of  Civil  Procedure^  §§  335,  337,  339;  Dore  v.  Thornbnrgh.  90 
Cal.,  64,  27  Pac.  30;  Harrigan  v.  Home  Life  Ins.  Co.,  128  Cal. 
531,  58  Pac.  180;  Higgins  v.  Graham,  143  Cal.  131.  76  Pac.  898. 

Recording  Fee. 

No  fee  is  provided  for. 

Re-Recording  or  Renev/al. 

No  provision. 

Discharge. 

As  there  is  no  provision  for  recording  or  filing,  so  there  is 
no  requirement  for  discharge. 


CALIFORNIA.  73 

Criminal  Liability  of  Vendee. 

It  is  a  crime  punishable  as  larceny  to  dispose  of  property- 
covered  by  chattel  mortgage.  There  is  no  specific  law  making 
it  a  crime  to  dispose  of  property  held  under  conditional  sale 
contract.       Penal  Code,  §§  507,  538. 


Loss,  Who  Must  Bear. 

Where  property  is  in  the  possession  of  a  vendee  under  con- 
ditional contract  of  sale,  and  is  destroyed  before  payment  in 
full,  the  title  is  held  to  be  in  vendor  and  he  cannot  thereafter 
collect  the  balance  unpaid.  Waltz  v.  Silveria  et  al,  25  Cal. 
App.  717,  145  Pac.  169. 

Fixtures. 

Where  property  delivered  under  conditional  contract  of 
sale  has  been  fastened  to  a  building  in  such  manner  that  it 
may  be  removed  without  material  injury  to  the  building  or  to 
itself^  the  vendor  is  entitled  to  its  possession  if  the  contract 
payments  are  not  made,  notwithstanding  the  fact  that  such 
property  has  become  a  fixture.  In  case  the  property  has  been 
so  incorporated  in  the  building  as  to  become  an  integral  part 
thereof,  and  so  it  cannot  be  removed  without  material  damage 
to  the  building  or  to  itself,  the  vendor  would  undoubtedly  have 
a  lien  upon  the  building  to  be  enforced  by  suit  in  equity.  Tib- 
betts  V.  Moore,  23  Cal.  208;  Hendy  v.  DinkerhoflF,  57  Cal.  3. 

Landlord's  Lien. 

There  is  no  provision  of  law  in  this  state  giving  a  landlord 
a  lien  for  rent  on  property  found  on  his  premises. 

Notes. 

The  giving  of  notes  under  a  conditional  sale  contract  does 
not  ordinarily  supersede  such  contract,  and  is  only  a  conven- 


74  CONDITIONAL  SALES. 

ient  method  of  evidencing  deferred  payments.  It  is  possible 
however,  to  include  provisions  in  such  notes  which  supplement 
or  vary  the  contract  and  make  the  notes  controlling  as  they 
are  usually  executed  subsequently  to  the  contract.  Southern 
California  Music  Co.  v.  Skinner,  17  Cal.  App.  205;  119  Pac. 
106;  In  re  Farmers  Dairy  Ass'n,  234  Fed.  118. 

Election  of  Remedies. 

It  is  definitely  settled  in  this  state  that  where  an  action  is 
brought  for  a  money  judgment  on  a  conditional  sale  contract, 
or  other  proceedings  taken  to  collect  the  debt,  such  acts  con- 
stitute an  election  of  remedies  and  no  repossession  of  the  prop- 
erty will  thereafter  be  allowed.  What  the  eflfect  would  be  of 
a  direct  contract  provision  giving  vendor  more  than  one  rem- 
edy has  not  been  determined,  Birkel  Co.  v.  Nast,  20  Cal.  App. 
651 ,  129  Pac.  945;  Park  &  Lacy  Co.  v.  White  River  Lbr.  Co.> 
loi  Cal.  37;  35  Pac.  442;  Holt  Mfg.  Co.  v.  Ewing,  109  Cal.  353; 
42  Pac.  435;  Muncy  v.  Brain,  158  Cal.  300,  no  Pac.  945. 

Re-Possession  and  Refund. 

Where  a  vendor  takes  possession  of  his  property  upon  de- 
fault he  must  advertise  and  sell,  crediting  the  amount  received 
upon  the  balance  unpaid.  A  failure  to  so  proceed  will  render 
a  vendor  liable  to  refund  the  entire  amount  paid  in  on  the  con- 
tract. By  complying  with  such  requirement  a  legal  foreclosure 
is  had  and  vendor  may  sue  for  the  balance.  Miller  v.  Stein, 
30  Cal.  402 ;  Matteson  v.  Equitable  Mining,  etc.,  Co.,  143  Cal. 
436,  yj  Pac.  144;  Liver  v.  Mills,  et  al,  155  Cal.  459,  loi  Pac. 
299;  Bray  v.  Lowrey,  163  Cal.  256,  124  Pac.  1004. 

Railroad  Equipment. 
No  statute. 


COLORADO. 


Legal  Status  of  Conditional  Sale  Contracts. 

There  are  no  express  statutory  provisions  in  this  state 
governing-  conditional  contracts  of  sale,  and  the  courts  of 
Colorado  have  taken  a  stand  with  reference  to  them  which  is 
different  from  that  of  any  other  state.  It  is  established  that  a 
contract  can  only  be  conditional  where  it  is  optional  with  the 
vendee  as  to  whether  or  not  he  will  pay,  and  as  in  modern 
business  such  option  is  only  allowed  where  the  goods  are 
placed  on  trial,  there  are  as  a  matter  of  fact  few  if  any  condi- 
tional sale  agreements  used  in  Colorado.  All  contracts  for  the 
delivery  of  personal  property  wherein  one  party  retains  the 
title  and  the  other  is  obligated  to  pay  a  purchase  price  or  do 
other  acts  before  ownership  is  transferred,  are  denominated 
chattel  mortgages  and  are  governed  by  the  laws  upon  that 
subject.  Courtright's  Colo.  Statutes,  §§  512-522;  Harbison  v. 
Tufts.  I  Colo.  App.  140,  27  Pac.  1014;  Brashear  v.  Christopher, 
10  Colo.  284,  15  Pac.  403. 

How  Executed. 

They  must  be  in  writing  signed  by  the  vendee  but  do  not 
need  to  be  signed  by  the  vendor,  the  acceptance  of  such  con- 
tract on  the  part  of  the  vendor  by  acting  upon  it  or  shipping 
the  goods  being  sufficient  to  make  a  binding  contract  as  be- 
tween the  parties  thereto.  There  is,  however,  no  objection  to 
contract  being  formally  signed  and  accepted  by  the  vendor. 
Courtright's  Colo.  Statutes,  §  521  ;  Singer  Mfg.  Co.  v.  Con- 
verse, 23  Colo.  247,  47  Pac.  264;  Singer  Mfg.  v.  Bohen,  31  Colo. 
444,  y2  Pac.  1097. 

7^ 


76  CONDITIONAL  SALES. 

Acknowledgment  or  Proof. 

Such  a  contract  is  valid  as  between  the  parties  thereto 
without  acknowledgment  or  proof  or  filing  or  recording,  but 
where  record  or  filing  is  to  be  made  it  should  be  acknowledged 
by  the  vendee  in  person,  there  is  no  provision  for  acknowl- 
edgment by  vendor  or  proof  by  subscribing  witness.  Court- 
right's  Colo.  Statutes,  §§  512  and  513  as  Amended  by  Chap.  50, 
Laws  of  191 5.  Andrews  &  Co.  v.  Colo.  Savings  Bank,  20  Colo. 
313,  36  Pac.  902. 

Recording  or  Filing. 

In  order  that  a  vendor  may  be  protected  as  against  bona 
fide  purchasers  or  encumbrancers  of  the  property  from  vendee, 
the  contract  must  be  recorded  or  filed  with  the  county  clerk 
or  recorder  of  the  county  where  the  property  is  located.  There 
is  no  definite  time  fixed  for  such  action,  but  it  should  always  be 
done  before  vendee  gets  possession  or  as  soon  thereafter  as 
possible.  If  the  property  covered  by  the  contract  is  all  in  one 
county  then  the  original  must  be  used,  but  where  portions  of  it 
are  located  in  dififerent  counties  then  a  copy  of  the  contract  may 
be  sent  to  each  county.  It  was  formerly  required  that  all  con- 
tracts must  be  recorded  but  filing  is  now  provided  for.  No 
recording  or  filing  is  necessary  as  to  third  parties  having  actual 
notice.  Courtright's  Colo.  Statutes,  §  513,  as  Amended  by 
Chap.  50,  Laws  of  1915  and  §  522 ;  George  v.  Tufts,  5  Colo.  162 ; 
Gerow  v.  Castello.  11  Colo.  560,  19  Pac.  505;  Jones  v.  Clark  et 
al,  20  Colo.  353,  38  Pac.  371  ;  Clark  v.  Bright,  30  Colo.  199,  69 
Pac.  506;  Coors  v.  Reagan,  44  Colo.  126,  96  Pac.  966;  In  re 
Apple  Suit  &  Cloak  Co.,  198  Fed.  322. 

Recording  Fee. 

Fee  for  filing,  twenty-five  (25)  cents.  Fee  for  recording 
is  one  ($1.00)  dollar  and  upwards  according  to  the  length  of 
contract,  and  the  county  where  record  is  made.  Courtright's 
Colo.  Statutes,  §  513,  as  Amended  by  Chap.  50,  Laws  of  1915 
and  §  2538. 


COLORADO.  "jy 

Re-Recording  or  Renewal. 

A  chattel  mortgage  must  be  renewed  at  the  expiration  of 
the  term  prescribed  for  payment.  There  is  no  such  provision 
for  conditional  contracts  of  sale.  Burchinnell  v.  Gorsline,  ii 
Colo.  App.  22,  52  Pac.  413. 

Discharge. 

There  is  no  provision  for  discharge  of  contract  from  record 
after  payment,  and  no  express  penalty  is  imposed  for  failure  to 
make  such  discharge.  It  is,  however?  always  best  upon  re- 
quest of  the  vendee  or  any  other  proper  parties  to  discharge 
such  contract  from  record  after  payment  in  full  has  been  re- 
ceived. 

Criminal  Liability  of  Vendee. 

It  is  a  crime  punishable  as  larceny  in  Colorado  to  sell  or 
dispose  of  chattel  mortgaged  property,  and  as  a  conditional 
sale  contract  is  held  to  be  a  chattel  mortgage  there,  the  same 
rule  would  undoubtedly  apply  to  the  sale  or  disposal  of  prop- 
erty within  such  state  where  the  contract  was  still  in  force. 
Courtright's  Colo  Statutes,  §§  523-525,  1687. 

Loss,  Who  Must  Bear. 

^Vhere  personal  property  has  been  delivered  under  con- 
ditional sale  contract,  making  the  vendee  absolutely  liable 
for  payment  of  the  installments,  then  if  said  property  shall  be 
destroyed,  the  loss  falls  upon  vendee.  ist  Congregational 
Church  of  Cripple  Creek  v.  Grand  Rapids  School  Furniture  Co., 
15  Colo.  App.  46,  60  Pac.  948. 

Fixtures. 

The  tendency  in  this  state  is  to  hold  that  personal  prop- 
erty attached  to  a  building  is  a  fixture  and  cannot  be  removed 


yS  CONDITIONAL  SALES, 

as  against  a  mortgage  of  such  real  estate.  Great  care  should 
be  exercised  in  having  the  contract  properly  recorded  as  under 
no  other  circumstances  can  vendor  hope  to  recover.  Fisk  v. 
People's  Nat'l  Bank,  14  Colo.  App.  21 ,  59  Pac.  63 ;  Puzzle  Min- 
ing &  Reduction  Co.  v.  Morse  Bros.  M.  &  S.  Co.,  24  Colo.  App. 
74,  131  Pac.  791. 

Landlord's  Lien. 

.  There  is  no  provision  of  law  in  this  state  giving  to  a  land- 
lord the  right  of  distress  for  rent  upon  personal  property  found 
in  his  premises. 

Notes. 

No  cases  found. 

Election  of  Remedies. 

No  cases  found. 

Re-Possession  and  Refund. 

No  cases  found. 

Railroad  Equipment. 

Railroad  equipment  may  be  sold  under  conditional  sale 
contract  or  a  lease  with  option  to  purchase,  either  of  which 
must  be  in  writing  and  cannot  be  for  a  period  of  more  than 
twenty-five  years.  Such  contract  in  order  to  protect  as  against 
third  parties  must  be  signed  and  then  acknowledged  by  the 
vendee  or  lessee  before  some  officer  authorized  to  take  ac- 
knowledgment of  deeds.  Same  must  then  be  recorded,  or  a 
copy  thereof  filed  in  the  office  of  the  secretary  of  state  and  in  the 
office  of  the  recorder  for  each  of  the  counties  within  the  state 
wherein  the  railroad  may  be  operated.  Each  engine  or  car  so 
sold  or  leased  shall  have  the  name  of  the  vendor  or  lessor,  or 
his  or  its  assignee  plainly  marked  thereon.  Courtright's  Re- 
vised Statutes,  1913,  §§  5523-27. 


COLORADO.  79 

Forms. 

ACKNOWLEDGMENT  BY  AN  INDIVIDUAL. 


State  of  Colorado,  )       . 
County  OF  Gilpin,    p'"' 

Henry  Wilson  appeared  before  me  this  twelfth  day  of  July, 
1917,  in  person  and  acknowledged  the  foregoing  instrument  to 
be  his  act  and  deed,  for  the  uses  specified  therein. 

Witness  my  hand  and  official  seal. 

Harvey  B.  Welch, 
Notary  Public  in  and  for  

j  NOTARIAL  ) 
I        SEAL.         ^ 


My  commission  as  notary  public  expires  on  the 
dav  of . 


State  of  Colorado,  ) 

^  ss  ' 
County  of  Gilpin,    j 

This  mortgage  was  acknowledged  before  me  this  12th  day 
of  July,  1917,  by  Henry  Wilson,  mortgagor. 

Witness  my  hand  and  official  seal. 

Harvey  B.  Welch, 
Notary  Public  in  and  for . 


notarial 
seal. 


My  commission  as  notary  public  expires  on  the day  of. 


8o  CONDITIONAL  SALES. 

ACKNOWLEDGMENT  BY  A  CO-PARTNERSHIP. 


State  of  Colorado,   / 

'    -  ss. : 
County  of  Boulder.  ) 

This  mortgage  was  acknowledged  before  me  this  12th  driy 
of  July,  1917,  by  Jackson  B.  Wolf,  for  Wolf  Brothers,  mort- 
gagors. 

Witness  my  hand  and  official  seal. 

John  Henry  Freeman, 

Notary  Public  in  and  for . 

\  notarial  I 
]      seal,      i" 

My  commission  as  notary  public  expires  on  the day  of 


ACKNOWLEDGMENT  BY  A  CORPORATION. 

State  of  Colorado,    ) 

'    '.  ss. : 
County  of  Boulder.  ^ 

Be  it  remembered  that  on  this  twelfth  day  of  July,  A.  D., 
1917,  before  me,  a  notary  public,  residing  in  the  City  of  Boul- 
der, County  of  Boulder,  in  the  State  of  Colorado,  duly  com- 
misioned  to  take  acknowledgments  of  proofs  of  deeds  and 
other  instruments  in  writing  under  seal,  personally  came 
James  B.  Martin,  President  of  the  Boulder  Mercantile  Com- 
pany, who  is  known  to  me  to  be  the  person  whose  name  is 
signed  to  the  foregoing  instrument,  who,  being  by  me  duly 
sworn,  deposes  and  says  that  he  resides  in  the  County  of  Boul- 
der and  State  of  Colorado ;  that  he  is  President  of  the  Boulder 
Mercantile  Company;  that  the  seal  affixed  to  the  foregoing  in- 
strument is  the  corporate  seal  of  the  Company ;  that  it  was 
affixed  by  order  of  said  Company ;  and  that  he  signed  the  cor- 
porate name  of  said  Company  to  said  instrument  by  like  or- 
der, as  President  of  said  Company ;  and  acknowledged  that  he 


COLORADO.  OI 

executed  and  delivered  the  said  instrument  on  behalf  of  said 
Company  as  his  free  and  voluntary  act,  and  that  the  Company 
also  executed  said  instrument  as  its  free  and  voluntary  act,  for 
the  uses  and  purposes  therein  set  forth. 

In  Witness  Whereof,  I  have  hereunto  set  my  hand  and  of- 
ficial seal  this  twelfth  day  of  July,  A,  D.,  1917. 

John  Henry  Freeman, 
Notary  Public  in  and  for 

\  NOTARIAL 
]        SEAL. 

My  commission  as  notary  public  expires  on  the 
day  of . 


State  of  Colorado,     ) 
County  of  Boulder,  i 

This  mortgage  was  acknowledged  before  me  this  12th  day 
of  July,  1917,  by  Sherman  L.  Cary,  president  of  Cary  Motors 
Corporation,  mortgagor. 

Witness  my  hand  and  official  seal. 

John  Henry  Freeman, 

Notary  Public  in  and  for . 

(  notarial  / 

I        SEAL.         ( 

My  commission  as  notary  public  expires  on  the day  of 


Officers  Before  JVIwm  Acknowlcdguients  May  Be  Taken. 

Within  the  State.  The  judge,  clerk  or  deputy  clerk  of  any 
court  of  record ;  the  recorder,  clerk  or  deputy  clerk  of  any 
county;  or,  within  their  counties,  any  notary  public  or  justice 
of  the  peace. 


82  CONDITIONAL  SALES. 

Without  the  State  but  Within  the  United  States.  The  sec- 
retary of  any  state  or  territory ;  the  clerk  of  any  court  of  record 
having  a  seal,  whether  a  state,  territorial  or  United  States 
court ;  a  notary  public,  or  a  commissioner  of  deeds  appointed 
under  the  laws  of  the  State  of  Colorado.  Any  other  officer 
authorized  thereto  by  the  laws  of  the  state  or  territory  within 
which  such  acknowledgment  is  taken  may  also  acb  provided 
the  official  title,  the  authority  and  the  signature  of  the  officer 
acting  are  certified  under  the  seal  of  the  court  by  a  clerk  of 
some  court  of  record  of  the  county,  city  or  district. 


CONNECTICUT. 


Legal  Status  of  Conditional  Sale  Contrac/s. 

Conditional  contracts  of  sale  are  provided  for  by  statute 
laws  in  this  state.  Revised  Statutes,  §§  4864-5.  Laws  1905, 
Chap.  113;  Laws  1909,  Chap.  8;  Hine  v.  Roberts,  48  Conn.  267; 
Loomis  v.  Bragg,  50  Conn.  228;  In  re  Wilcox  &  Howe  Co.,  70 
Conn.  220;  Cohen  v.  Schneider,  70  Conn.  505,  40  Atl.  455; 
Wake  V.  Thomas,  78  Conn.  273,  61  Atl.  949;  Lambert  Hoist- 
ing Engine  Co.  v.  Carmody,  79  Conn.  419,  65  Atl.  141 ;  Pearne 
V.  Coyne,  79  Conn.  570,  65  Atl.  973 ;  United  Machinery  Co.  v. 
Etzel  &  Sons,  89  Conn.  336 ,  94  Atl.  356. 

How  Executed. 

They  must  be  in  writing  signed  by  the  vendee  but  do  not 
need  to  be  signed  by  the  vendor,  the  acceptance  of  such  a  con- 
tract on  the  part  of  the  vendor  by  acting  upon  it  or  shipping 
the  goods  being  sufficient  to  make  a  binding  contract  as  be- 
tween the  parties  thereto.  There  is,  however,  no  objection  to 
the  contract  being  formally  signed  and  accepted  by  the  vendor. 

Revised  Statutes,  §§  4864-5. 


Acknowledgement  or  Proof. 

Where  a  conditional  contract  of  sale  covers  household 
furniture,  phonographs,  phonograph  supplies,  musical  instru- 
ments, bicycles,  or  property  exempt  from  attachment  or  execu- 
tion, it  is  valid  as  between  the  parties  thereto^  and  also  as  to 
third  persons,  without  acknowledgment  or  proof,  or  filing  or 


83 


84  CONDITIONAL  SALES. 

recording;  but  if  it  covers  or  includes  other  property  it  will  not 
be  valid  and  hold  title  as  against  third  parties,  unless  it  be  re- 
corded, and  in  order  that  the  instrument  may  be  so  recorded 
it  must  be  acknowledged  by  the  vendee  in  person.  There  is  no 
provision  for  acknowledgment  by  the  vendor,  or  proof  by  a 
subscribing  witness. 

In  case  the  contract  covers  watches,  jewelry  or  precious 
stones  and  is  made  outside  the  state  of  Connecticut,  then  even 
though  acknowledged  and  recorded  in  Connecticut  it  will  not 
be  protection  as  against  a  duly  licensed  pawnbroker  there,  who 
makes  a  bona  fide  loan  upon  such  property.  Revised  Statutes, 
§§  4864-5  ;  Laws  1905,  Chap.  113  ;  Laws  1909?  Chap.  8;  National 
Cash  Register  Co.  v.  Lesko,  jy  Conn.  276,  58  Atl.  967. 


Recording  or  Filing. 

Where  the  contract  has  been  duly  executed  and  acknowl- 
edged by  the  vendee  in  person,  it  may  be  recorded  and  is  then 
valid  as  against  all  third  persons  with  the  exception  of  a  pawn- 
broker making  a  bona  fide  loan  upon  watches,  jewelry  and 
precious  stones  where  such  contract  is  made  outside  the  state 
of  Connecticut.  There  is  no  provision  for  filing.  The  record- 
ing officer  is  the  town  or  township  clerk  of  the  town  or  town- 
ship in  which  the  vendee  resides. 

The  original  contract  must  be  sent  for  record  within  a 
reasonable  time  after  its  date.  Title  will  certainly  be  reserved 
if  the  contract  is  recorded  before  vendee  gets  possession  of  the 
property.  Revised  Statutes,  §§  4864-5;  Laws  1909,  Chap.  8;  In 
re  Wilcox  &  Howe  Co.,  70  Conn.  220,  39  Atl.  163;  National 
Cash  Register  Co.  v.  Woodbury,  70  Conn.  321,  39  Atl.  168; 
Beggs  &  Co.  V.  Bartels  et  al,  73  Conn.  132,  46  Atl.  874;  Camp 
V.  Thatcher  Co.,  75  Conn.  165 ,  52  Atl.  953 ;  American  Clay  Ma- 
chinery Co.  V.  New  England  Brick  Co.  87  Conn.  369,  87  Atl. 

731- 


CONNECTICUT.  85 

Recording  Fee. 

The  fee  to  the  recording-  officer  is  fixed  at  forty  cents  per 
page,  but  a  larger  charge  is  often  attempted  usually  about  ten 
cents  per  folio  of  one  hundred  words.  Revised  Statutes,  §  4845. 

Re-Recording  or  Renewal. 

A  contract  in  writing  which  is  non-negotiable  is  valid  for 
seventeen  years;  other  contracts  for  six  years.  There  is  no 
provision  for  re-recording  or  renewal.  Conditional  contracts 
of  sale  are  classed  among  the  non-negotiable  instruments. 

Discharge. 

There  is  no  provision  for  discharge  of  such  a  contract 
from  record  after  payment  and  no  express  penalty  for  failure  to 
make  such  discharge.  It  is  always  well,  however,  that  such 
a  contract  should  be  discharged  after  payment  upon  request 
being  made  therefor  by  the  proper  party,  as  any  person  dam- 
aged by  such  failure  could  undoubtedly  recover  his  actual  loss. 

Criminal  Liability  of  Vendee, 

The  vendee  under  conditional  contract  of  sale  who  sells  or 
conveys  such  property  or  any  part  thereof  without  consent  of 
the  vendor  and  without  informing  the  person  to  whom  he  sells 
of  the  true  condition,  shall,  upon  conviction,  be  imprisoned  not 
more  than  six  months,  or  fined  not  more  than  $100.00.  A  per- 
son who  removes  or  conceals  such  property,  or  who  aids  in  or 
assents  to  <^uch  action;  shall  be  fined  not  more  than  $500.00,  or 
imprisoned  for  not  more  than  six  months.  Revised  statutes, 
§  1253. 

Loss,  Who  Must  Bear. 

Where  property  is  delivered  under  conditional  sale  con- 
tract and  is  injured  or  destroyed  before  payment,  in  full,  the 
loss  may  fall  upon  either  the  vendor  or  vendee,  depending  upon 
the  state  laws  where  the  loss  occurs.     In  case  the  contract  ex- 


86  CONDITIONAL  SALES. 

pressly  provides  that  such  loss  shall  be  born  by  the  vendee, 
that  provision  is  enforceable.  O'Neil-Adams  Co.  v.  Eklund  et 
al,  89  Conn.  232,  93  Atl.  524. 

Fixtures. 

The  tendency  is  in  this  state  toward  making  property  at- 
tached to  buildings  in  a  substantial  manner  a  part  thereof,  and 
not  to  permit  removal  where  the  rights  of  prior  or  subsequent 
mortgages  of  the  real  estate  are  involved.  Camp  v.  Thatcher 
Co., 75  Conn.  165,  52  Atl.  953. 

Landlord's  Lien. 

A  landlord's  lien  for  rent  is  not  recognized  by  the  laws  of 
this  state. 

Notes. 

The  giving  of  notes  under  a  conditional  sale  contract  un- 
less they  contain  too  great  a  portion  of  the  contract  itself,  or 
additional  provisions,  are  only  looked  upon  as  evidencing  pay- 
ments and  do  not  supersede  the  contract. 

Election  of  Remedies. 

Where  a  money  judgment  is  taken  covering  the  amount 
unpaid  under  a  conditional  contract  of  sale  the  property  cannot 
afterwards  be  replevined  even  though  the  judgment  is  not  col- 
lected. Repossession  of  property  prevents  recovery  of  price. 
Hine  v.  Roberts,  48  Conn.  267;  Loomis  v.  Bragg,  50  Conn.  228; 
Appleton  V.  Norwalk  Library  Corp.,  53  Conn.  4 ,  22  Atl.  681 ; 
Crompton  v.  Beach,  62  Conn.  25 ,  25  Atl.  446;  Stalker  v.  Hayes, 
81  Conn.  711 ,  71  Atl.  1099. 

Repossession  and  Refund. 

There  appears  to  be  no  requirement  in  this  state  for  a  re- 
fund upon  repossession.  Pearne  v.  Coyne,  79  Conn.  570>  65 
Atl.  973. 


CONNECTICUT.  8/ 


Railroad  Equipment. 


Railroad  or  street  railway  equipment  or  rolling  stock  may 
be  sold  under  conditional  sale  contract  which  must  be  in  writ- 
ing, signed  and  acknowledged  by  all  parties  thereto  and  be  re- 
corded in  order  that  same  shall  be  notice  as  against  subsequent 
attachment  creditors  or  subsequent  bona  fide  purchasers  for 
value.  The  record  shall  be  made  with  the  secretary  of  state 
and  each  locomotive,  engine  or  car  so  sold,  shall  have  plainly 
marked  on  both  sides  thereof  the  name  of  the  "owner"  or  "les- 
sor" or  "bailor"  as  the  case  may  be.  Same  must  be  discharged 
after  payment.  Fees  $i.oo  for  filing,  and  $i.oo  for  recording 
the  first  two  pages  or  less,  and  fifty  cents  for  each  additional 
page.    Revised  Statutes,  §§  481 1,  4866,  4867. 

Forms. 

ACKNOWLEDGMENT  BY  AN  INDIVIDUAL. 

State  of  Connecticut,  ) 

'-  ss. : 
County  of  Litchfield.    ^ 

On  July  12,  1917,  personally  appeared  John  C.  Anderson, 
signer  and  sealer  of  the  foregoing  instrument  and  acknowl- 
edged before  me,  same  to  be  his  free  act  and  deed. 

William   P.  Keenan, 

Notary  Public  in  and  for 

I  notarial  I 

}        SEAL.         i 


ACKNOW^LEDGMENT  BY  A  CORPORATION. 

State  of  Connecticut,  ) 
County  OF \ 

July   12,   1917.  then  and  there  personally  appeared  before 
me  George  A.  W'eller.  a  notary  public.  Fred  C.   Door.  Presi- 


88  CONDITIONAL  SALES. 

dent  of  the  Mason  Stone  Company,  a  corporation,  signer  and 
sealer  of  the  foregoing  instrument  and  acknowledged  the  same 
to  be  his  free  act  and  deed  as  president  of  the  said  Mason  Stone 
Company,  the  above  described  corporation,  and  the  free  act  and 
deed  of  the  said  corporation  before  me. 

Witness  my  hand  and  notarial  seal  this  12th  day  of  ]u\y, 
A.  D.,  1917. 

George  A.  Weller, 

Notary  Public  in  and  for  

j  notarial    ) 
SEAL.  I 


Officers  Before  Whom  Acknozvledgments  May  Be  Taken. 

Within  the  State.  Any  judge  of  a  court  of  record  whether 
of  the  state  or  of  the  United  States ;  a  clerk  of  the  superior 
court,  court  of  common  pleas  or  district  court;  a  justice  of  the 
peace ;  a  commissioner  of  the  superior  court ;  a  commissioner 
of  the  school  fund ;  a  notary  public,  or  any  town  clerk  or  as- 
sistant town  clerk. 

Without  the  State  hut  Within  the  United  States.  A  commis- 
sioner appointed  under  the  laws  of  the  State  of  Connecticut,  or 
any  other  officer  authorized  to  take  acknowledgments  of  deeds 
in  the  state  or  territory  where  the  acknowledgment  is  taken. 


DELAWARE. 


Legal  Status  of  Conditional  Sale  Contracts. 

There  are  no  statutory  provisions  in  this  state  governing 
conditional  sale  contracts,  but  their  legality  is  established  by 
court  decisions.  Where  the  debt  has  matured  the  vendor 
should  act  with  diligence  to  recover  his  property,  for  if  the 
rights  of  third  parties  intervene  the  vendor  is  deemed  to  have 
waived  his  title  if  he  fails  to  act  promptly.  Fuller  v.  Webster, 
28  Del.  538,  95  Atl.  335;  Flint  Wagon  Works  v.  Maloney,  3 
Boyce  137,  81  Atl.  502;  Duplex  Printing  Press  Co.  v.  Journal 
Printing  Co.,  i  Pennew  565,  43  Atl.  840;  South  Bend  Iron 
Works  V.  Reedy,  5  Pennew  361 ,  60  Atl.  698 ;  Town  send  v.  Mel- 
vin,  5  Pennew  495 ,  63  Atl.  330 ;  Knowles  Loom  Works  v. 
Knowles,  etc.,  6  Pennew  185,  65  Atl.  26;  National  Cash  Regis- 
ter Co.  V.  Riley,  7  Pennew  355 ,  74  Atl.  362 ;  Forbes  v.  Martin, 
7  Houst.  375 ,  ;^2  Atl.  327 ;  Mathews  v.  Smith,  8  Houst.  22 , 
31  Atl.  879 ;  Jones  v.  Savin,  96  Atl.  756. 

How  Executed. 

They  should  be  in  writing  signed  by  vendee  but  do  not 
need  to  be  signed  by  vendor,  the  acceptance  of  such  a  contract 
on  the  part  of  the  vendor,  by  acting  upon  it,  or  by  shipping  the 
goods  being  sufficient  to  make  a  binding  contract  as  between 
the  parties  thereto.  There  is,  however,  no  objection  to  the  con- 
tract being  formally  signed  and  accepted  by  the  vendor.  Smith 
v.  Kemether  et  al,  i  Boyce  572.  76  Atl.  482 ;  Ott  v.  Specht  & 
one,  8  Houst.  61,  12  Atl.  721. 

89 


90  CONDITIONAL  SALES. 

Acknowledgment  or  Proof. 

Such  a  contract  is  valid  not  only  between  the  parties 
thereto  but  as  to  all  persons  excepting  a  landlord's  lien  for 
rent,  without  being  either  acknowledged  or  proven. 

Recording  or  Filing. 

There  is  no  provision  by  which  such  contracts  can  be 
either  recorded  or  filed  even  if  acknowledged  or  proven  in  the 
same  manner  as  a  deed  of  real  estate.  Recording  or  filing 
gives  no  additional  security. 

Recording  Fee. 

There  is  no  provision  for  a  recording  or  filing  fee. 

Re-Recording  or  Renewal. 

As  there  is  no  requirement  for  recording  or  filing,  so  there 
is  no  necessity  for  renewal. 

Discharge. 

There  is  no  provision  for  discharge. 

Criminal  Liability  of  Vendee. 

There  is  no  law  making  it  a  crime  to  dispose  of  property 
held  under  conditional  sale  contract. 

Loss,  Who  Must  Bear. 

No  cases  found. 

Fixtures. 

Where  property  sold  under  conditional  contract  of  sale 
has  been  fastened  to  a  building  in  such  a  manner  that  it  may 


DELAWARE.  9I 

be  removed  without  material  injury  to  the  building  or  to  itself, 
the  courts  of  this  state  have  decided  that  the  vendor  is  entitled 
to  possession  of  the  property  if  the  contract  payments  are  not 
made.  Where  the  property  has  been  so  attached  to  a  building 
as  to  become  a  material  part  thereof,  and  where  same  cannot 
be  removed  without  great  injury  to  the  building  or  to  itself, 
the  property  cannot  be  replevined,  but  it  is  probable  that  a  lien 
for  the  balance  unpaid  can  be  enforced  against  the  building  by 
an  action  in  equity.  Watertown  S.  E.  Co.  v.  Davis,  5  Houst.  192 ; 
Knowles  Loom  Works  v.  Knowles  etc.,  6  Pennew  185 ,  65  Atl. 
26 ;  Ott  v.  Specht  &  one,  8  Houst.  61,  12  Atl.  721  ;  In  re  :  Freder- 
ica  Water,  Light  &  Power  Co.,  93  Atl.  376. 

Landlord's  Lien. 

The  owner  of  a  building  into  which  property  covered  by  a 
conditional  contract  of  sale  is  placed  has  a  lien  upon  it  for  the 
rent  of  his  premises  which  cannot  be  avoided,  except  by  a 
waiver  from  the  landlord.  Revised  Laws,  §§  19-69,  Pages  868- 
876. 

Notes. 

The  giving  of  notes  under  a  conditional  sale  contract  does 
not  ordinarily  supersede  such  agreement,  and  especially  so 
where  the  contract  itself  provides  that  notes  may  be  taken 
covering  deferred  payments.  National  Cash  Register  Co.  v. 
Riley.  7  Pennew  365,  74  Atl.  362;  Traux  v.  Parvis,  7  Houst. 
330,  32  Atl.  227. 

Election  of  Remedies. 

It  is  definitely  settled  in  this  state  that  a  vendor  under  con- 
ditional contract  of  sale  cannot  bring  suit  for  a  money  judg- 
ment covering  the  amount  unpaid,  and  thereafter  replevin  the 
])roperty  if  he  fails  to  collect  such  judgment.  If  he  elects  to 
avail  himself  of  the  right  to  sue  for  the  jnirchasc  price,  he  can- 
not afterwards  replevin  the  property. 


92  CONDITIONAL  SALES. 

Re-Possession  and  Refund. 

No  cases  found. 

Railroad  Equipment. 

Railroad  and  street  railway  equipment  and  rolling  stock 
may  be  delivered  on  conditional  sale  contract  or  lease  with  op- 
tion to  purchase.  In  order  that  such  a  contract  may  be  valid 
as  to  subsequent  purchasers  in  good  faith,  and  creditors*  it 
must  be  acknowledged  (does  not  state  by  whom),  and  be  re- 
corded with  the  secretary  of  state,  and  with  the  recorder  of 
deeds  for  the  county  in  which  the  vendee  or  lessee  has  its  prin- 
cipal place  of  business  within  the  state.  Such  record  is  valid 
for  the  term  of  ten  years,  there  is  no  provision  for  renewal  nor 
for  discharge.  The  fees  for  recording  are  to  the  secretary  of 
state  two  cents  per  line,  to  the  recorder  of  deeds,  one  cent  per 
line.     Revised  Code,  pages  276,  552,  892,  911. 


DISTRICT  OF  COLUMBIA. 


Legal  Status  of  Conditional  Sale  Contracts. 

Conditional  contracts  of  sale  are  recognized  by  the  statute 
law  of  the  United  States  governing  the  District  of  Columbia. 
Code  of  Law,  §§  546,  547;  Minnis  Co.  v.  L.  C.  Smih  Bros.  Co., 
33  D.  C.  App.  357;  Kimball  v.  Williams,  36  D.  C.  App.  43. 


How  Executed. 

They  must  be  in  writing  signed  by  all    parties    thereto. 
Code  of  Law,  §  547;  Sanders  v.  Wilson,  19  D.  C.  555. 


Acknowledgment  or  Proof. 

Such  a  contract  without  regard  to  its  amount  is  valid  as 
between  the  parties  thereto  without  acknowledgment  or  proof 
or  filing  or  recording. 

Where  the  contract  is  for  more  than  $100.00,  in  order  to 
hold  title  as  against  third  persons  without  notice,  it  is  neces- 
sary that  same  be  acknowledged  in  person  by  the  vendee  and 
be  duly  recorded.  There  is  no  provision  for  acknowledgment 
by  vendor  or  proof  by  subscribing  witness. 

If  the  contract  is  for  $100.00  or  less  it  does  not  need  to  be 
either  acknowledged  or  filed,  or  recorded,  but  is  valid  as  against 
all  parties  except  perhaps  a  landlord's  lien  for  rent  of  the  prem- 
ises where  it  may  be  placed.    Code  of  Law,  §§  546.  547. 


93 


94  CONDITIONAL  SALES. 

Recording  or  Filing. 

Where  the  contract  is  for  more  than  $100.00  and  has  been 
duly  executed  by  all  parties  and  acknowledged  by  the  vendee 
in  person,  it  is  necessary  in  order  to  hold  title  as  against  third 
parties  without  notice  that  the  original  contract  should  be  re- 
corded.      There  is  no  provision  for  filing. 

The  law  of  conditional  sales  prescribes  they  shall  be  re- 
corded in  the  same  manner  as  chattel  mortgages,  and  chattel 
mortgages  must  be  recorded  within  ten  days  after  acknowl- 
edgment, with  the  recorder  of  deeds  for  the  District  of  Colum- 
bia. \\'here  the  contract  is  for  $100.00  or  less  no  recording  or 
filing  is  necessary  to  hold  title  as  against  all  third  persons  with 
the  possible  exception  of  a  landlord's  lien  for  rent.  Code  of 
Law,  §§  546,  547.  Bridget  v.  Cornish,  i  Mackey  29;  Colvert  v. 
Baetjer,  4  D.  C.  App.  416;  Baum  v.  Knabe  &  Co.  Mfg.  Co.,  33 
D.  C.  App.  237. 


Recording  Fee. 

The  fee  to  the  recording  officer  is  fifty  cents  for  the  first 
200  words  and  fifteen  cents  for  each  additional  100  words.  Code 
of  Law%  §  552. 


Re-Recording  or  Renewal. 

There  is  no  provision  for  re-recording  or  renewal,  and  the 
contract  is  valid  for  the  term  of  three  years. 


Discharge. 

Provision  is  made  for  discharge  of  such  a  contract  after 
payment.  It  may,  however,  be  stated  as  a  general  rule  that  no 
discharge  need  be  sent  until  same  is  requested  by  the  vendee 
or  some  party  in  interest. 


DISTRICT  OF  COLUMBIA.  95 

Criminal  Liability  of  Vendee. 

It  is  a  crime  punishable  by  a  fine  of  not  more  than  $100.00 
or  imprisonment  for  not  more  than  90  days  to  sell,  conceal,  re- 
move without  the  District,  or  dispose  of  property  held  under 
conditional  contract  of  sale,  or  to  aid  in  so  doing.  Code  of 
Law,  §  833-A. 

Loss,  Who  Must  Bear. 

No  cases  found. 


Fixtures. 

The  efifect  produced  by  fastening  to  a  building  property 
delivered  under  conditional  contract  of  sale  has  not  yet  been 
determined.  The  probability  is,  however,  that  where  such  a 
contract  is  duly  recorded  before  the  property  became  a  fixture, 
either  the  property  could  be  removed  or  an  action  in  equity  be 
brought  to  enforce  the  balance  unpaid  as  a  lien  upon  the  build- 
ing. 

Landlord's  Lien. 

Where  the  contract  is  for  more  than  $100.00  and  has  been 
duly  recorded  before  the  property  is  moved  upon  the  land- 
lord's premises,  he  has  no  lien  for  rent.  Where  the  amount  of 
such  contract  is  for  $100.00  or  less  and  it  is  not  so  recorded  the 
question  is  unsettled  whether  or  not  the  landlord  has  a  lien  for 
rent  upon  such  property  found  in  his  building.  Code  of  Law, 
§§  1229-1230.    Johnson  v.  Douglas,  2  Mackey  36. 

Notes. 

The  giving  of  notes  under  a  conditional  sale  contract  does 
not  ordinarily  supersede  such  agreement  and  especially  so 
where  the  contract  itself  provides  that  notes  may  be  taken  cov- 


96  CONDITIONAL  SALES. 

ering  deferred  payments.     Wall  v.  De  Mitkiewicz,    9    D,    C. 
App.  109. 

Election  of  Remedies. 

Where  the  vendor  under  conditional  contract  of  sale  takes 
action  to  secure  payment  of  his  debt  even  though  unsuccess- 
ful, he  cannot  thereafter  retake  the  property,  or  where  the  prop- 
erty has  been  retaken  no  action  for  the  debt  can  thereafter  be 
maintained.  Smith  v.  Gilmore,  7  D.  C.  App.  192 ;  Campbell 
Printing  Press  Co.  v.  Henkle,  19  D.  C.  95. 

Re-Possession  and  Refund. 

No  cases  found. 

Railroad  Equipment. 

No  special  statute. 

Forms. 

ACKNOWLEDGMENT  BY  AN  INDIVIDUAL. 

United  States  of  America,    ) 
District  of  Columbia.  \ 

I,  Robert  D.  Andrus,  a  notary  public  in  and  for  the  said 
District  of  Columbia,  do  hereby  certify  that  Vinzenz  Katz,  the 
vendee  named  in  contract  hereto  attached  bearing  date  July  12, 
1917,  personally  appeared  before  me  in  said  District,  the  said 
party  being  personally  well  known  to  me  as  the  person  who 
executed  the  said  agreement,  and  acknowledged  the  same  to  be 
his  act  and  deed. 

Given  under  my  hand  and  official  seal  this  12th  day  of 
July,  1917. 

Robert  D.  Andrus, 

Notary  Public  in  and  for 

notarial 

SEAL. 


DISTRICT  OF  COLUMBIA.  97 

ACKNOWLEDGMENT  BY  A  CORPORATION. 

United  States  of  America,    ) 
District  OF  Columbia.      ^     " 

I,  Henry  A.  Miller,  a  notary  public  in  and  for  the  District 
of  Columbia,  do  hereby  certify  that  on  the  12th  day  of  July, 
A.  D.  1917,  personally  appeared  Floyd  L.  Davis,  personally 
well  known  to  me  (or  proved  by  the  oaths  of  credible  wit- 
nesses to  be)  the  attorney  of  the  York  Manufacturing  Com- 
pany, named  in  the  foregoing-  deed,  and  by  virtue  and  in  pur- 
suance of  the  authority  therein  conferred  upon  him  acknowl- 
edged said  deed  to  be  the  corporate  act  and  deed  of  said  York 
Manufacturing  Company. 

Given  under  my  hand  and  official  seal  this  12th  day  of 
July,  A.  D.  1917. 

Henry  A.  Miller, 

Notary  Public  in  and  for  . 

^  notarial  ) 
/      seal,      j 


Officers  Before  Whom  A cknotvledg merits  May  Be  Taken. 

Within  the  District.  Any  judge  of  a  court  of  record  and  of 
law;  any  judge  of  the  supreme,  circuit,  district  or  territorial 
courts  of  the  United  States ;  any  justice  of  the  peace,  notary 
public,  commissioner  of  a  circuit  court  of  the  District,  or  a  com- 
missioner of  deeds  of  the  District  appointed  for  the  purpose. 

Without  the  District  hut  Within  the  United  States.  Any 
judge  of  a  court  of  record,  or  any  chancellor  of  any  state,  or  any 
justice  of  the  peace  or  notary  public,  or  any  officer  who  might 
take  the  acknowledgment  within  the  District,  but  the  official 
character  of  the  officer  acting  must  be  duly  certified,  under  of- 
ficial seal,  by  a  register,  clerk  or  other  public  officer  having 
cognizance  of  the  facts. 


98  CONDITIONAL   SALES    (DISTRICT  OF  COLUMBIA). 


FLORIDA. 


Legal  Status  of  Conditional  Sale  Contracts. 

Conditional  contracts  of  sale  are  recognized  by  statutory 
provisions  in  this  state,  and  their  legality  is  established  by 
court  decisions.  General  Statutes,  §  2516.  Smith  v.  Gufford, 
36  Fla.  48I,  18  So.  717;  Mizell  Live  Stock  Co.  v.  McCaskill  Co., 
59  Fla.  322,  51  So.  547;  Phenix  Insurance  Co.  v.  Hilliard  et  al, 
59  Fla.  590,  52  So.  799;  Bank  of  Jasper  v.  Tuten,  62  Fla.  423, 
57  So.  238;  Dillon  V.  Mizell  Live  Stock  Co.,  66  Fla.  425 ,  63  So. 
824;  Evans  v.  Kloeppel,  73  So.  180. 

How  Executed. 

They  should  be  in  writing  signed  by  all  parties  thereto.  An 
oral  contract  may  be  valid  between  the  parties,  and  a  written 
contract  signed  by  vendee  alone  will  protect  for  the  space  of 
two  years  after  he  secures  possession,  but  the  vendor  is  the 
party  who  must  acknowledge  the  contract  or  whose  signature 
must  be  proven  if  the  instrument  is  to  be  recorded,  and  should 
therefore  sign  it.  There  should  always  be  two  subscribing  wit- 
nesses to  the  vendor's  signature.  General  Statutes,  §  2448. 
Scotch  Mfg.  v.  Carr,  53  Fla.  480,  43  So.  427. 

Acknowledgment  or  Proof. 

Such  a  contract  is  valid  without  acknowledgment  by  ven- 
dee or  vendor  or  proof  by  a  subscribing  witness  or  recording 
or  filing,  not  only  as  between  the  parties  thereto ;  but  for  the 
term  of  two  years,  as  to  all  third  persons  with  the  possible  ex- 
ception of  a  landlord's  lien  for  rent.     Where  it  is  desired  to 

99 


lOO  CONDITIONAL  SALES. 

record  the  vendor  must  acknowledge  the  instrument  in  person 
or  have  his  or  its  signature  proven  by  one  subscribing  witness. 
General  Statutes,  §§  2448,  2481 ;  Onyx  Soda  Fountain  v. 
L'Engle,  53  Fla.  314,  43  So.  771. 


Recording  or  Filing. 

Such  a  contract  does  not  need  to  be  either  recorded  or  filed 
for  the  period  of  two  years  after  the  vendee  secures  possession  ; 
but  if  same  is  not  paid  at  the  expiration  of  that  time  it  should 
be  recorded  in  order  to  hold  title  as  against  creditors  of,  and 
purchasers  from  the  vendee,  there  is  no  provision  for  filing. 

The  recording  officer  is  the  clerk  of  the  circuit  court  in  the 
county  where  the  vendee  resides. 

In  order  that  such  a  contract  may  be  recorded,  it  must  be 
acknowledged  by  the  vendor  in  person  or  such  vendor's  signa- 
ture must  be  proven  by  one  subscribing  witness.  General 
Statutes,  §§  1832,  2448,  2481,  2516.  Jackson  Sharpe  Co.  v.  Hol- 
land, 14  Fla.  384;  Campbell  Mfg.  Co.  v.  Walker,  22  Fla.  412, 
I  So.  59. 


Recording  Fee. 

The  fee  to  the  recording  officer  is  25  cents  for  the  first  100 
words,  and  10  cents  for  each  additional  100  words  or  part 
thereof.  Some  officers  seek  to  charge  also  5  cents  for  filing  and 
10  cents  for  indexing,  but  there  would  seem  to  be  no  justifica- 
tion therefor,  as  a  recording  fee  does  necessarily  include  taking 
possession  of  the  paper,  and  should  cover  indexing. 

Where  a  request  is  made  for  information  that  such  a  con- 
tract has  been  recorded  this  is  additional  service  to  be  rendered 
by  the  recorder  and  many  charge  25  cents  for  a  certificate.  Gen- 
eral Statutes,  §§  1832,  1839. 


FLORIDA.  lOl 


Re-Recording  or  Renewal. 

The  contract  is  valid  for  the  term  of  five  years.    There  is 
no  provision  for  re-recording  or  renewal. 


Discharge. 

Provision  is  made  for  discharge  of  such  a  contract  after 
payment.  It  may,  however,  be  stated  as  a  general  rule  that  no 
discharge  need  be  sent  until  same  is  requested  by  the  vendee  or 
some  party  in  interest. 

The  fee  for  recording  such  a  discharge  is  the  same  as  for 
recording  the  contract,  according  to  length.  General  Statutes, 
§§  1832,  1839,  2499. 

Criminal  Liability  of  Vendee. 

Any  person  who  shall  sell,  mortgage,  dispose  of.  or  re- 
moves from  the  county  where  located ;  or  any  person  who  shall 
knowingly  conceal,  buy,  take,  receive  or  assist  in  such  removal, 
shall,  upon  conviction,  be  punishable  by  fine  not  exceeding 
$500.00  or  by  imprisonment  for  not  more  than  one  year.  General 
Statutes,  §§  3356-3357- 

Loss,  Who  Must  Bear. 

No  cases  found. 

Fixtures. 

Where  personal  property  is  delivered  to  a  contractor  un- 
der conditional  sale  agreement  and  vendor  knows  the  use  to 
which  such  property  will  be  put,  or  has  reasonable  grounds  to 
ascertain  such  fact,  and  the  property  is  thereafter  used  in  the 
erection  or  equipment  of  a  building  by  the  contractor,  then  no 
repossession  can  be  enforced  by  said  vendor.  American  Pro- 
cess Co.  v.  Florida  Pressed  Brick  Co.,  56  Fla.  116,  47  So.  942. 


I02  CONDITIONAL  SALES. 


Landlord's  Lien. 


A  landlord  has  a  lien  for  rent  upon  a  tenant's  property  lo- 
cated in  the  premises.  Where  such  tenant  is  in  possession  of 
property  conditionally  sold  and  the  contract  has  been  recorded, 
no  such  lien  can  afifect  it.  Where,  however,  the  contract  has 
not  been  recorded  and  the  tenant  has  not  been  in  possession 
thereunder  for  a  period  of  two  years,  the  rule  is  not  so  easily 
stated,  as  there  have  been  no  decisions  directly  upon  the  point. 
It  is  the  opinion  of  competent  attorneys  in  Florida  that  no  lien 
accrues  under  such  circumstances.  If  the  vendee  under  con- 
ditional sale  contract  is  allowed  to  remain  in  possession  for 
more  than  two  years  without  recording  same,  a  landlord's  lien 
for  rent  will  be  prior.  General  Statutes,  §§  2237-2247.  Hud- 
nall  v.  Paine,  39  Fla.  67,  21  So.  791. 

Notes. 

The  giving  of  notes  under  conditional  sale  contract  does 
not  ordinarily  supersede  such  contract  and  is  only  a  convenient 
method  of  evidencing  deferred  payments.  If,  however,  too 
great  a  part  of  the  contract  is  included  in  the  notes,  it  may  be- 
come necessary  to  record  same,  and  the  notes  are  made  non- 
negotiable.  Roof  V.  Chattanooga  Wood  Split  Pully  Co.,  36 
Fla.  284.  18  So.  597. 

Election  of  Remedies. 

If  an  action  be  brought  under  conditional  sale  contract  for 
a  money  judgment,  then  even  though  same  cannot  be  collected 
the  vendor  loses  his  lien  upon  the  property  and  it  cannot  there- 
after be  repossessed.  American  Process  Co.  v.  Florida  White 
Pressed  Brick  Co.,  56  Fla.  116,  47  So.  942. 

Re-Possession  and  Refund. 

No  cases  found. 


FLORIDA.  103 


Railroad  Equipment. 


A  conditional  contract  of  sale  for  railroad,  or  street  rail- 
way equipment  or  rolling  stock,  in  order  to  be  valid  as  to  sub- 
sequent judgment  creditors  or  subsequent  bona  fide  purchasers 
for  value  and  without  notice,  must  be  in  writing  signed  by  all 
parties  and  be  acknowledged  by  the  vendee  or  lessee  or  bailee 
or  be  duly  proven  by  a  subscribing  witness  to  his  or  its  signa- 
ture; and  must  be  recorded  in  the  office  of  the  Secretary  of 
State.  Each  locomotive,  engine  or  car  so  sold,  leased,  or  hired, 
shall  have  the  name  of  the  vendor,  lessor,  or  bailor  plainly 
marked  on  each  side  thereof,  followed  by  the  word  "owner"  or 
"lessor"  or  "bailor"  as  the  case  may  be.  When  paid  in  full  the 
record  may  be  discharged  by  recording  an  instrument  in  the 
said  office,  same  being  duly  acknowledged  by  the  vendor,  les- 
sor or  bailor,  or  his  or  its  assigns  or  by  a  declaration  to  like 
eiifect  made  upon  the  margin  of  the  record.  Fees  to  the  Secre- 
tary of  State  for  recording  any  paper  are  20  cents  for  the  first 
100  words  and  10  cents  for  each  succeeding  100  words.  The  fee 
for  noting  a  declaration  on  the  record  is  $1.00.  General 
Statutes,  §  2845. 


Forms. 

PROOF  BY  WITNESS. 
State  of  Florida, 


ss. 
County  of  Hernando 


On  this  15th  day  of  October,  1917,  before  me,  Charles  W. 
Ainsley,  a  notary  public,  personally  appeared  Earl  Massey, 
whose  name  is  affixed  as  a  subscribing  witness  to  the  foregoing 
instrument  between  John  Smith  and  Henry  Jones  and  who  be- 
ing duly  sworn  did  depose  and  say,  that  the  said  John  Smith 
duly  signed,  sealed,  and  delivered  the  foregoing  instrument  to 
the  said  Henry  Jones  as  his  act  and  deed,  in  the  presence  of 
him,  the  said  Earl  ATasscy,  and  also  in  the  presence  of  Carlton 


I04  CONDITIONAL  SALES. 

H.  Cole,  the  other  subscribing-  witness  to  said  instrument,  who 
then  at  the  request  of  the  said  John  Smith  duly  signed  and  at- 
tested the  same  in  the  presence  of  the  deponent  and  of  the  said 
John  Smith. 

Witness  my  hand  and  official  seal  on  the  date  in  this  cer- 
tificate first  above  written. 

Charles  W.  Ainsley, 

Notary  Public  in  and  for . 

notarial  ) 
seal.      { 


ACKNOWLEDGMENT  BY  VENDOR  IN  PERSON. 
State  of  Florida, 


ss 

County  of  Duval.  ' 

On  this  day  personally  appeared  before  me,  Charles  H. 
Brown,  a  notary  public  in  and  for  said  State  and  County, 
Thomas  G.  McFarrell,  to  me  well  known  as  the  person  de- 
scribed in  and  who  executed  the  foregoing  instrument,  and  ac- 
knowledged that  he  executed  the  same  for  the  purposes  therein 
expressed  and  prays  that  it  may  be  admitted  to  record. 

In  Witness  Whereof,  I  have  hereunto  affixed  my  hand  and 
official  seal  at  Jacksonville,  Florida,  this  12th  day  of  July,  1917. 

Charles  H.  Brown, 

Notary  Public  in  and  for . 

notarial 

SEAL. 

ACKNOWLEDGMENT  BY  A  CORPORATION. 

State  of  Florida,  ) 

'.  ss. '. 
County  of  Duval.  i| 

On  this  I2th  day  of  July.  1917,  before  me,  James  C.  Carter, 
a  notary  public  in  and  for  the  county  and  state  aforesaid,  per- 


FLORIDA.  105 

sonally  appeared  Niles  V.  Shepard,  to  me  known  and  known 
to  me  to  be  the  president  for  other  officer)  of  the  Harris  Press 
Company,  the  above  described  corporation,  and  to  me  known 
to  be  the  person  who  executed  the  foregoing  instrument  and 
acknowledged  the  execution  thereof  to  be  his  free  act  and  deed, 
and  the  free  act  and  deed  of  the  said  Harris  Press  Company, 
for  the  uses  and  purposes  therein  mentioned. 

In  Witness  Whereof,  I  have  hereunto  set  my  hand  and  af- 
fixed my  notarial  seal  the  day  and  year  in  this  certificate  first 
above  written. 

James  C.  Carter, 
Notary  Public  in  and  for . 

^  NOTARIAL    1 
}        SEAL.         i 


Officers  Before  W'Jwm  Acknowledgments  May  Be  Taken. 

Within  the  State.  Any  judge,  clerk  or  deputy  clerk  of  a 
a  court  of  record;  a  notary  public  or  a  justice  of  the  peace,  the 
certificate  of  acknowledgment  in  all  cases  being  under  seal. 

Without  the  State  hut  Within  the  United  States.  A  judge  or 
clerk  of  any  United  States,  state,  territorial  or  district  court 
having  a  seal;  any  notary  public  or  justice  of  the  peace  having 
a  seal ;  the  certificate  of  acknowledgment  in  all  cases  being  un- 
der the  seal  of  the  court  or  officer  as  the  case  mav  be. 


I06  CONDITIONAL   SALES    (fLORIDa). 


GEORGIA. 


Legal  Status  of  Conditional  Sale  Contracts. 

Conditional  contracts  of  sale  are  provided  for  by  statute 
law  in  this  state.  Code  of  Ga.,  §§  3318-19.  Conder  v.  Holleman 
&  One,  71  Ga.  93 ;  Wilson  v.  Burks,  71  Ga.  862 ;  Home  v.  Guiser 
Mfg.  Co.,  74  Ga.  790;  Rhodes  v.  Dickinson,  79  Ga.  724,  4  S.  E. 
164;  Tidwell  V.  Burkett,  81  Ga.  84,  6  S.  E.  816;  Steen  &  One  v. 
Harris,  81  Ga.  681 ,  8  S.  E.  206;  Bradley  v.  Brukett,  82  Ga.  255 , 
II  S.  E.  492;  Hays  v.  Jordan  &  Co.,  85  Ga.  741 ,  11  S.  E.  833; 
Mann  v.  Thompson,  86  Ga.  347,  12  S.  E.  746;  Atkinson  v. 
Brunswick-Balke-Collender  Co.,  87  S.  E.  891 ;  Snook  v.  Raglan, 
89  Ga.  251,  15  S.  E.  364;  Cottrell  v.  Merchants  Bank,  89  Ga. 
508,  15  S.  E.  944;  Ross  V.  McDufifie  &  One,  91  Ga.  120,  16  S.  E. 
648;  Rhode  Island  Locomotive  Works  v.  Empire  Lbr.  Co.  et 
al,  91  Ga.  639,  17  S.  E.  1012;  Derrick  v.  Pierce,  94  Ga.  466,  19 
S.  E.  246;  Austin  v.  Hamilton,  96  Ga.  759,  22  S.  E.  304;  Harp  v. 
Patapsco,  etc.,  99  Ga.  752,  27  S.  E.  181 ;  Finlay  v.  Ludden  & 
Bates,  105  Ga.  264,  31  S.  E.  180;  Penland  v.  Cathey,  no  Ga.  431, 
35  S.  E.  659;  Commercial  Pub.  Co.  v.  Campbell  P.  P.  Co..  iii 
Ga.,  388,  36  S.  E.  756;  Anderson  &  One  v.  Leverette,  116  Ga. 
732,  42  S.  E.  1026;  Monetrie  Repair  Co.  v.  Hill,  120  Ga.  730,  48 
S.  E.  143;  Thomas  Furniture  Co.  v.  T.  &  C.  Furniture  Co.,  120 
Ga.  879,  48  S.  E.  333;  Wilmerfing  etc.  v.  Rhodes,  etc.,  122  Ga. 
312,  50  S.  E.  100;  Tucker  v.  Mann,  124  Ga.  1003,  53  S.  E.  504; 
Crenshaw  v.  Wilkes,  134  Ga.  684,  68  S.  E.  498;  Myric  v.  Liquid 
Carbonic  Co.,  137  Ga.  154,  yx^  S.  E.,  7;  Baughman  Automobile 
Co.  v.  Emanuel,  137  Ga.  354,  "j}^  S.  E.  511 ;  Venable  v.  Young, 
137  Ga.  375,  73  S.  E.  633;  Southern  Iron  &  Equipment  Co.  v. 
Voyles,  138  Ga.  258,  75  S.  E.  248;  Thomason  v.  Moore,  etc.,  139 
Ga.  341  ,  "jy  S.  E.  155 ;  Bridges  &  Murphy  v.  McFarland,  143 

107 


Io8  CONDITIONAL  SALES. 

Ga.  581,  85  S.  E.  856;  In  re:  Atlanta  News  Publishing  Co.,  In- 
tervention of  Goss  Printing  Press  Co.,  160  Fed.  519;  In  re: 
Farmers  Supply  Co.,  196  Fed.  990;  In  re:  Rose,  206  Fed.  991 ; 
Union  Trust  Co.  v.  Beach  Mfg.  Co.,  225  Fed.  93. 

How  Executed. 

They  should  be  in  writing,  signed  by  the  vendee,  but  donot 
need  to  be  signed  by  the  vendor,  the  acceptance  of  such  a  con- 
tract on  the  part  of  the  vendor,  by  acting  upon  it,  or  shipping 
the  goods,  being  sufficient  to  make  a  binding  contract  as  be- 
tween the  parties  thereto.  There  is,  however,  no  objection  to 
the  contract  being  formally  signed  and  accepted  by  the  vendor. 
Guilford  et  al,  v.  McKinley,  61  Ga.  230;  Penland  v.  Cathey,  no 
Ga.  431 ,  35  S.  E.  659;  Walters  v.  Americus  Jewelry  and  Music 
Co.,  114  Ga.  564,  40  S.  E.  803;  Clark  Bros.  v.  McNatt,  132  Ga. 
610,  64  S.  E.  795. 

Acknowledgment  or  Proof. 

Such  a  contract  is  valid  as  between  the  parties  thereto 
without  acknowledgment  or  proof,  or  filing  or  recording,  but  in 
order  to  make  it  valid  and  to  hold  title  as  against  third  parties 
it  must  be  recorded.  It  is  necessary  in  order  that  such  a  con- 
tract may  be  recorded  for  the  vendee  to  acknowledge  same  in 
person,  or  otherwise  that  it  be  proven  by  one  subscribing  wit- 
ness, to  the  vendee's  signature.  Code  of  Georgia,  §§  3318-19. 
Merchants  etc.  Bank  v.  Cottrell,  etc.,  96  Ga.  168,  23  S.  E.  127; 
Cunningham  &  Co.  v.  Cureton,  96  Ga.  489,  23  S.  E.  420;  Hill  v. 
Ludden  et  al,  113  Ga.  320,  38  S.  E.  752;  General  Fire  Extin- 
guisher Co.  V.  Lamar,  141  Fed.  353 ;  In  re :  Bondurant  Hdwe. 
Co.,  231  Fed.  247. 

Recording  or  Filing. 

After  the  contract  has  been  duly  executed  by  the  vendee, 
it  is  necessary  in  order  to  hold  title  as  against  third  parties  that 
the  original  contract  be  recorded.     There  is  no  provision  for 


GEORGIA.  log 

filing.  The  statute  law  provides  that  the  contract  must  be 
recorded  within  thirty  days  from  the  date  thereof,  but  the 
highest  court  in  the  state  has  decided  that  a  record  made  within 
thirty  days  after  the  vendee  secures  possession  of  the  property 
is  sufficient. 

The  recording  officer  is  the  clerk  of  the  superior  court  of 
the  county  where  the  vendee  resides,  but  if  the  property  is  lo- 
cated in  a  different  county  the  contract  should  also  be  recorded 
with  the  same  officer  in  that  county.  An  authenticated  copy 
of  the  contract  should  be  used  where  the  original  has  already 
been  recorded.  Where  property  is  without  the  state  when  the 
contract  is  made,  such  contract  must  be  recorded  as  above  set 
forth  within  six  months  after  the  property  is  brought  into  the 
state. 

A  subscribing  witness  can  swear  to  the  execution  of  such 
a  contract  so  as  to  entitle  same  to  be  recorded,  and  the  sales- 
man who  secures  the  order  for  the  vendor  may  act  as  such  sub- 
scribing witness  provided  he  does  not  also  execute  the  contract 
for  and  on  behalf  of  the  vendor.  When  it  becomes  necessary 
to  record  the  contract  in  question  it  may  be  sent  to  the  sub- 
scribing witness  who  makes  oath  that  he  saw  same  duly  signed 
and  executed  by  the  vendee.  This  does  away  with  the  neces- 
sity of  requesting  the  vendee  to  acknowledge  the  contract  in 
person.  Code  of  Georgia,  §§  3259-3264,  3318-3319.  Bond  v. 
Brewer,  96  Ga.  443,  23  S.  E.  421  ;  Holland  Co.  v.  Adams,  103 
Ga.  610,  30  S.  E.  432;  Anderson  v.  Adams,  117  Ga.  919,  43  S.  E. 
982;  North  V.  Goebel  et  al,  138  Ga.  739,  76  S.  E.  46;  Rowe  v. 
Spencer,  140  Ga.  540,  79  S.  E.  144;  Pickard  &  One  v.  Garrett, 
141  Ga.  831 ,  82  S.  E.  251  ;  Farmers  Bank  of  Doerm  v.  Avery  & 
Co.,  89  S.  E.  409;  In  re:  Gosch,  Berlin  Machine  Works  v.  Hil- 
ton &  Hodge,  etc.,  126  Fed.  627 ;  In  re :  Brown  \\'agon  Co.,  224 
Fed.  266. 

Recording  Fee. 

The  fee  for  recording  such  a  contract  is  twenty-five  cents 
for  the  first  one  hundred  words  and  fifteen  cents  for  each  ad- 


no  CONDITIONAL  SALES. 

ditional  one  hundred  words  or  part  thereof.  Some  clerks  make 

an  additional  charge  of  twenty-five  cents  for    indexing,    but 

there  appears  to  be  no  provision  of    law  authorizing    same. 
Code  of  Georgia,  §§  3324,  5595. 

Re-Recording  or  Renewal, 

The  contract  is  valid  for  the  term  of  six  years.  There  is 
no  provision  for  re-recording  or  renewal. 

Discharge. 

There  is  a  provision  in  the  laws  of  this  state  for  discharge 
of  conditional  contracts  of  sale  from  record  after  payment,  but 
no  penalty  is  provided  for  failure  to  make  such  a  discharge.  It 
is,  however,  always  advisable  upon  request  of  the  vendee  or 
any  other  proper  party  to  discharge  such  a  contract  from  rec- 
ord after  payment  in  full  has  been  received.  Fee  for  discharge, 
fifteen  cents.    Code  of  Georgia,  §§  3270-3271. 

Criminal  Liability  of  Vendee. 

It  is  a  crime  to  dispose  of  property  covered  by  conditional 
contract  of  sale,  punishable  by  labor  in  the  chain  gang  for  a 
period  not  exceeding  twelve  months,  or  a  fine  not  exceeding 
$1,000.00,  or  both.  Code  of  Ga.,  Vol.  VI,  §§  722-722,,  72^^ 
1065;  Miley  v.  State  of  Ga.,  118  Ga.  274;  45  S.  E.  245; 
Shirley  v.  State  of  Ga.,  13  Ga.  App.  676,  79  S.  E.  752; 
Singleton  v.  State,  14  Ga.  App.  527 ,  81  S.  E.  596 ;  McDuffie  v. 
State,  90  S.  E.  740. 

Loss,  Who  Must  Bear. 

By  statute  it  is  provided  that  vendor  must  bear  the  loss 
when  the  property  is  injured  or  destroyed,  unless  the  contract 
expressly  places  the  loss  upon  vendee.  Code  of  Ga.,  §  4123; 
Boyer  v.  Ashburn  et  al,  64  Ga.  271 ;  Randle  v.  Stone  &  Co., 
77  Ga.  501  ;  Avery  &  Co.  v.  Middlebrooks  et  al,  142  Ga.  830, 
83  S.  E.  944;  Wells  et  al,  v.  J.  A.  Fay  &  Eagan  Co.,  143  Ga. 
732 ;  85  S.  E.  873. 


GEORGIA.  Ill 

Fixtures. 

The  effect  produced  by  fastening  to  a  building  property- 
sold  under  conditional  contract  is  to  the  end  that  if  such  at- 
tachment is  to  a  reasonable  degree  permanent  it  cannot  be  re- 
moved as  against  the  interests  of  third  parties,  even  though 
the  contract  be  properly  recorded.  Cunningham  v.  Cureton, 
96  Ga.  489,  23  S.  E.  420;  Schofield's  Sons  Co.  v.  Woodward, 
137  Ga.  65,  y2  S.  E.  509. 

Landlord's  Lien. 

A  landlord's  lien  for  rent  of  the  building  in  which  such 
property  may  be  placed  is  prior  to  the  lien  of  such  contract  un- 
less the  contract  is  recorded  before  the  property  is  moved  upon 
his  premises.  Code  of  Ga.,  §§  3340-3344;  Cohen  &  Co.  v. 
Chandler,  79  Ga.  427,  7  S.  E.  160;  Gartrell  v.  Clay,  81  Ga.  327, 
7  S.  E.  161. 

Notes. 

A  purchase  money  note,  reserving  title  to  the  property  in 
question  to  the  vendor  until  paid  for,  or  a  note  evidencing  de- 
ferred payments  under  a  conditional  sale  contract,  when  trans- 
ferred by  indorsement  without  limitation,  carries  with  it  title 
to  the  property  for  which  the  note  was  given,  as  well  as  all 
remedies  of  the  vendor  as  against  the  vendee. 

If,  however,  the  transfer  of  the  note  is  made  without  re- 
course or  by  mere  delivery,  it  has  been  held  that  the  trans- 
feree gets  no  right  to  follow  the  property,  and  the  title  rests 
in  the  vendee  as  of  the  time  when  the  transfer  is  made. 

It  is  conceded  as  beyond  question,  however,  that  a  con- 
ditional vendor  may  transfer  his  right  in  the  property  by  a 
formal  assignment  of  the  contract,  and  an  indorsement  in  blank 
of  the  notes  if  any  have  been  given.  Farrar  v.  Brackett,  86  Ga. 
463,  12  S.  E.  686;  Cade  v.  Jenkins,  88  Ga.  791,  15  S.  E.  292; 
Burch  V.  Pedigo  &  One,  113  Ga.  11 57,  39  S.  E.  493;  English  & 
One  V.  Hill,  116  Ga.  415,  42  S.  E.  717;  Bradley  v.  Cassels,  117 


112  CONDITIONAL  SALES. 

Ga.  517,  43  S.  E.  857;  McCullough  v.  Pritchett,  120  Ga.  585, 
48  S.  E.  148;  Townsend  v.  S.  O.  Produce  Co.,  127  Ga.  342,  56 
S.  E.  436. 

Election  of  Remedies. 

The  law  in  this  state  is  definitely  settled  that  a  money 
judgment  may  be  secured  on  the  contract  and  every  endeavor 
made  to  collect,  after  which  if  no  payment  is  received,  the  prop- 
erty may  be  replevined.  There  are  two  effective  methods  in 
this  state  for  securing  payment.  Either  by  purchase  money  at- 
tachment, or  through  a  proceeding  by  which  judgment  is  se- 
cured for  the  unpaid  purchase  money  after  which  a  quit  claim 
conveyance  of  the  property  is  made  to  the  vendee  and  recorded 
with  the  superior  court  clerk  of  the  county,  and  same  is  then 
levied  upon  and  sold.  Either  of  these  methods  when  pursued 
obviates  the  necessity  of  a  refund.  Code  of  Ga.,  §§  5084-86, 
6037-39;  Bowen  v.  Frick  &  Co.,  75  Ga.  786;  Cade  v.  Jenkins, 
88  Ga.  791,  15  S.  E.  292;  Glisson  v.  Heggie  Bros.,  105  Ga.  30, 
31  S.  E.  118;  Malsby  Machinery  Co.  v.  Parker,  138  Ga.  768,  76 
S.  E.  53 ;  Coley  v.  Dortch  &  Co.,  139  Ga.  239,  yy  S.  E.  jj;  Mal- 
larv  Bros.  Machinery  Co.  v.  Thomas  et  al,  142  Ga.  786,  83  S. 
E.783. 

Re-Possession  and  Refund. 

Where  property  held  under  conditional  sale  contract  is  re- 
possessed upon  default,  the  vendor  is  liable  to  repay  vendee 
the  full  amount  received  under  the  contract,  less  a  reasonable 
rental  for  use  of  the  property,  while  in  vendee's  possession ;  and 
less  an  amount  equal  to  any  depreciation  in  value  of  said  prop- 
erty by  damage  or  injury  over  and  above  ordinary  wear  and 
tear  which  it  may  have  sustained  while  in  vendee's  possession. 
(See  Election  of  Remedies).  Wilson  v.  Burks.  71  Ga.  862; 
Hays  V.  Jordan  &  Co.,  85  Ga.  741,  11  S.  E.  833;  Snook  v.  Rag- 
lan, 89  Ga.  251,  15  S.  E.  364;  Commercial  Pub.  Co.  v.  Camp- 
bell, etc.  Co.,  Ill  Ga.  388,  36  S.  E.  756;  Scott  v.  Glover  &  Co., 

7  Ga.  App.  182,  66  S.  E.  380;  Brice  &  Co.  v.  Whitehurst  &  One, 

8  Ga.  App.  291,  68  S.  E.  1075. 


GEORGIA.  113 

Railroad  Equipment. 

Railroad  rolling  stock  or  equipment  may  be  delivered  in 
Georgia  under  conditional  sale  contract  or  lease  with  option  to 
purchase,  which  must  be  in  writing  and  be  recorded  within  six 
months  after  the  date  of  its  execution  with  the  clerk  of  the  su- 
perior court  of  the  county  wherein  is  situated  within  the  state 
the  principal  office  of  the  vendee  or  lessee  railroad  company. 
Such  contract  if  made  within  the  state  shall  be  executed  in  the 
presence  of  and  attested  by,  or  be  proved  before  a  notary  pub- 
lic, or  justice  of  any  court  of  the  state,  or  a  clerk  of  the  superior 
court.  If  made  without  the  state  it  shall  be  executed  in  the 
presence  of  and  attested  by,  or  proved  before  a  commissioner  of 
deeds  for  the  State  of  Georgia,  or  a  consul  or  vice  consul  of  the 
United  States,  or  by  a  judge  of  a  court  of  record  in  the  state 
where  executed.  Each  locomotive  engine  and  car  so  delivered 
shall  have  the  name  of  the  vendor  or  lessor  or  the  assignee  of 
such  vendor  or  lessor  plainly  placed  or  marked  on  the  same,  or 
be  otherwise  so  marked  as  to  plainly  indicate  the  ownership 
thereof.    Civil  Code,  §§  2790-2792. 

Forms, 

PROOF  BY  SUBSCRIBING  WITNESS. 

State  of  Georgia,      ) 
County  of  Lowndes.  ^ 

In  person  before  me  comes  Irvin  A.  Meeker,  who  being 
duly  sworn,  deposes  and  says  that  he  was  present  and  saw 
James  Eaton  sign  and  execute  the  attached  contract  for  the  pur- 
poses therein  recited,  and  that  the  same  was  signed  by  him  as 
a  witness  thereto. 

Irvin  A.  Meeker. 
Sworn  and  subscribed  before  me 
this  I2th  day  of  July,  1917. 
Victor  Donnell, 

Notary  Public  in  and  for . 

(  notarial  } 

I        SEAL.        \ 


114  CONDITIONAL  SALES. 

ACKNOWLEDGMENT  BY  AN  INDIVIDUAL. 

State  of  Georgia.     ) 

-  ss. '. 
County  OF  Sumter,    i 

Before  me,  James  Haskins,  a  notary  public  in  and  for  the 
said  State  and  County,  personally  came  Herman  Goldmann,  to 
me  known  to  be  the  person  described  in  and  who  executed  the 
foregoing  instrument,  and  acknowledged  the  same  to  be  his 
free  act  and  deed. 

In  Witness  Whereof,  I  have  hereunto  set  my  hand  and 
seal  this  12th  day  of  July,  1917. 

James  Haskins, 
Notary  Public  in  and  for . 

NOTARIAL 
SEAL. 

ACKNOWLEDGMENT   BY   CORPORATION. 

State  of  Georgia,       ) 

'-  ss.  I 
County  of  Sumter.     ^     " 

Be  it  remembered  that  on  this  12th  day  of  July,  1917,  be- 
fore me  in  the  state  and  county  aforesaid,  personally  came 
Leland  T.  Gregg,  to  me  personally  known  and  personally 
known  to  me  to  be  the  individual  described  in  and  who  executed 
the  foregoing  contract,  and  to  be  the  President  of  Morgan  Shoe 
Company,  a  corporation,  described  therein  ;  and  the  said  Leland 
T.  Gregg  duly  acknowledged  to  me  that  he  executed  the  same 
in  behalf  of  and  as  the  free,  true  and  lawful  deed  of  said  com- 
pany, for  the  uses  and  purposes  therein  mentioned,  and  he  ac- 
knowledged the  same  to  be  his  true  and  lawful  act. 

In  Witness  Whereof,  I  have  hereunto  set  my  hand  and  af- 
fixed my  official  seal  the  day  and  year  first  above  written. 

Henry  L.  Stafford, 

Notary  Public  in  and  for . 

notarial 
seal. 


GEORGIA.  115 

Officers  Before  Whom  Acknowledgments  May  Be  Taken. 

Within  the  State.  Any  judge  of  a  court  of  record;  a  clerk 
of  the  superior  court;  a  justice  of  the  peace  or  a  notary  public. 

Without  the  State  but  Within  the  United  States.  A  com- 
missioner of  deeds  for  Georgia ;  the  judge  of  any  court  of  rec- 
ord in  the  state  where  the  instrument  was  executed,  the  signa- 
ture of  the  judge  to  be  attested  by  the  clerk  of  the  court  under 
seal ;  the  clerk  of  any  such  court  under  seal  of  the  court ;  a  no- 
tary public  of  the  state  and  county  in  which  the  instrument  is 
executed,  the  authority  of  the  notary  to  be  certified  under  seal 
by  the  clerk  of  the  court  by  which  such  notary  was  appointed, 
or,  if  appointed  by  the  Governor,  his  authority  to  be  certified 
by  the  Secretary  of  State. 


ii6  CONDITIONAL  SALES  (Georgia). 


IDAHO. 


Legal  Status  of  Conditional  Sale  Contracts. 

There  are  no  statutory  provisions  in  this  state  governing 
conditional  contracts  of  sale,  except  for  railroad  equipment,  but 
their  legality  is  established  by  court  decisions.  Mark  Means 
Transfer  Co.  v.  MacKinzie,  9  Idaho  165,  73  Pac.  135  ;  Barton  v. 
Groseclose,  11  Idaho  227,  81  Pac.  623;  Kester  v.  Schuldt,  11 
Idaho  663,  85  Pac.  974;  Peasley  v.  Noble,  17  Idaho  686,  107 
Pac.  402 ;  Pease  v.  Teller  Corp.,  22  Idaho  807,  127  Pac.  981 ; 
Trousdale  v.  Winona  Wagon  Co.,  25  Idaho  130,  137  Pac.  372. 

How  Executed. 

They  should  be  in  writing  signed  by  the  vendee,  but  do 
not  need  to  be  signed  by  the  vendor,  the  acceptance  of  such 
a  contract  on  the  part  of  the  vendor  by  acting  upon  it,  or  ship- 
ping the  goods,  being  sufficient  to  make  a  binding  contract  as 
between  the  parties  thereto.  There  is,  however,  no  objection 
to  the  contract  being  formally  signed  and  accepted  by  the 
vendor. 

Acknowledgment  or  Proof. 

Such  a  contract  is  valid  without  acknowledgment  by  the 
vendee  or  vendor,  and  without  being  signed  or  proven  by  a 
subscribing  witness,  and  without  being  recorded  or  filed ;  not 
only  between  the  parties  thereto,  but  as  to  all  third  persons, 
provided  there  is  no  fraud  in  the  transaction. 

Recording  or  Filing. 

There  is  no  provision  under  which  such  a  contract  can 
either  be  recorded  or  filed  even  when  executed  and  acknowl- 


117 


Il8  CONDITIONAL  SALES, 

edged  in  the  same  manner  as  a  deed  of  real  estate.     The  con- 
tract is  good  for  five  years  without  recording  or  filing. 

Recording  Fee. 

As  no  recording  or  filing  is  necessary,  no  fee  is  designated. 

Re-Recording  or  Renewal. 

No  provision. 

Discharge. 

No  provision. 

Criminal  Liability  of  Vendee. 
No  provision. 

Loss,  Who  Must  Bear. 
No  cases  found. 

Fixtures. 

No  cases  found. 

Landlord's  Lien. 

There  is  no  law  giving  to  a  landlord  any  lien  for  rent  on 
property  delivered  under  conditional  contract  of  sale  and  placed 
upon  his  premises. 

Notes. 

The  giving  of  notes  under  conditional  sale  contract  does 
not  ordinarily  have  the  effect  to  supersede  such  agreement  and 
is  only  a  convenient  method  of  evidencing  deferred  payments. 
Barton  v.  Groseclose,  ii  Idaho  2.2y,  8i  Pac.  623. 


IDAHO.  119 


Election  of  Remedies. 

The  bringing  of  a  suit  to  collect  the  purchase  price  under 
conditional  sale  contract  constitutes  an  election,  and  the  prop- 
erty cannot  thereafter  be  replevined.  North  etc.,  Co.  v.  Strong 
et  al,  25  Idaho  721,  139  Pac.  847. 

Repossession  and  Refund. 

No  cases  found. 

Railroad  Equipment. 

Railroad  or  street  railway  equipment  or  rolling  stock  may 
be  delivered  under  conditional  sale  contract,  or  lease  with  op- 
tion to  purchase,  but  in  order  that  same  shall  be  valid  as  to 
subsequent  judgment  creditors  or  subsequent  purchasers  for 
value  and  without  notice,  the  contract  must  be  in  writing, 
signed  by  all  parties  thereto  and  be  acknowledged  by  the  ven- 
dee, or  lessee  or  bailee,  or  be  duly  proven  in  the  same  manner 
as  a  deed  of  real  estate  is  required  to  be  proven.  It  must  then 
be  recorded  with  the  secretary  of  state.  Each  locomotive  en- 
gine or  car  so  sold,  leased,  or  hired  shall  have  the  name  of  the 
vendor,  lessor  or  bailor  plainly  marked  on  each  side  thereof 
followed  by  the  word  "owner,"  "lessor,"  or  "bailor"  as  the  case 
may  be.  When  paid  in  full  the  contract  may  be  released  by  a 
declaration  in  writing  duly  attested,  made  on  the  margin  of  the 
record  by  the  vendor,  lessor  or  bailor  or  his  or  its  assigns,  or 
by  a  separate  instrument  of  release  duly  acknowledged  by  the 
same  parties  and  recorded  with  the  secretary  of  state.  Fees 
for  recording  the  contract  or  release  $2.00  and  for  noting  re- 
lease on  the  margin  as  aforesaid  $1.00.  Civil  Code,  §§  2827, 
2828. 


I20  CONDITIONAL  SALES  ( IDAHO), 


ILLINOIS. 


Legal  Status  of  Conditional  Sale  Contracts, 

Conditional  sale  contracts  are  not  provided  for  by  the 
statute  laws  of  this  state,  except  as  to  railroad  equipment.  They 
are  valid  as  between  the  parties  thereto,  and  as  to  third  persons 
having  notice.  Also  as  to  an  assignee  of  the  vendee  under 
state  law,  but  not  as  to  a  trustee  in  bankruptcy.  (See  Chattel 
Mortgage  Law).  Ketchum  v.  Watson,  24  111.  591 ;  McCormick 
et  al  V.  Hadden,  37  111.  370;  Murch  v.  Wright,46  111. 487 ;  Arnold 
V.  Stock,  81  111.  407 ;  Home  Sewing  Machine  Co.  v.  Wille,  85 
111.  333;  Sumner  v.  McKee,  89  111.  127;  Van  Duzor  v.  Allen, 
90  111.  499;  Blatchford  v.  Boyden,  122  111.  657,  13  N.  E.  801; 
Davis  et  al  v.  Chicago  Dock  Co.,  129  111.  180,  21  N.  E.  830; 
Chickering  et  al  v.  Bastress  et  al,  130  111.  206,  22  N.  E.  542; 
Lenz  v.  Harrison,  148  111.  598,  36  N.  E.  567;  Hooven  et  al  v. 
Burdett,  153  111.  672,  39  N.  E.  1107;  Peoria  Mfg.  Co.  v.  Lyons, 
153  111.  427,  38  N.  E.  661 ;  Schwartz  v.  Messinger,  167  111.  474, 
47  N.  E.  719;  Sondheimer,  et  al  v.  Graeser,  172  111.  293,  50  N. 
E.  174;  Gundy  v.  Biteler,  6  111.  App.  510;  Fairbanks  v.  Malloy, 
16  111.  App.  277;  Cunningham  v.  Nelson  Mfg.  Co.,  17  111.  App. 
510;  Thompson  v.  Duff,  19  111.  App.  75;  Cleveland  Co-operative 
Stove  Co.,  30  111.  App.  372;  Barbour  v.  Perry,  41  111.  App.  613; 
New  England  Piano  Co.  v.  Maxwell,  67  111.  App.  593 ;  Hallbech 
&  One*  v.  Stewart,  69  111.  App.  225 ;  Boehn  v.  Griebenow,  78 
111.  App.  675 ;  Mathews  Apparatus  Co.  v.  Neal,  89  111.  App.  174; 
Magerstadt  v.  Harder,  95  111.  App.  303 ;  Singer  Mfg.  Co  v.  111- 
ington,  103  111.  App.  517;  Herbert  v.  Rhodes  Burford  Furniture 
Co.,  106  111.  App.  583;  Judy  V.  Evans,  109  111.  App.  154;  O'Neil 
V.  Rogers,  no  111.  App.  622;  Roesenbaum,  et  al  v.  King,  114  111. 
App.  648:  Edward  Thompson  Co.  v.  Collins.  151  111.  App.  545; 

121 


122  CONDITIONAL  SALES. 

In  re:  Rodgers,  125  Fed.  169;  In  re:  Gait,  128  Fed.  64;  In  re: 
Flanders,  134  Fed.  560;  In  re:  Pittsburg  Big  Muddy  Coal  Co., 
Goodman  Mfg.  Co.  v.  Skaggs,  et  al,  215  Fed.  703. 


How  Executed. 

The  contract  should  be  in  writing  signed  by  the  vendee  but 
does  not  need  to  be  signed  by  the  vendor,  the  acceptance  of 
such  a  contract  on  the  behalf  of  the  vendor  by  acting  upon  it  or 
shipping  the  goods  being  sufificient  to  make  a  binding  contract 
as  between  the  parties  thereto.  There  is,  however,  no  objec- 
tion to  the  contract  being  formally  signed  and  accepted  by  the 
vendor. 


Acknowledgment  or  Proof. 

There  is  no  provision  of  law  by  which  such  a  contract  can 
be  either  acknowledged  by  the  vendee  or  vendor  or  be  proven 
by  a  subscribing  witness  so  as  to  entitle  it  to  be  either  filed  or 
recorded,  and  there  is  no  protection  to  the  vendor  in  such  filing 
or  recording.  Gilbert  v.  National  Cash  Register  Company,  176 
111.  288,  52  N.  E.  22. 


Recording  or  Filing, 

It  has  been  decided  by  the  highest  court  in  this  state  that 
even  though  a  conditional  sale  contract  be  acknowledged  or 
proven  in  the  same  manner  as  provided  for  a  chattel  mortgage 
and  thereafter  recorded,  the  vendor  gets  no  better  rights  under 
such  circumstances  than  where  no  acknowledgment  or  proof 
or  recording  has  been  made.  These  contracts  are  simply  ig- 
nored so  far  as  recording  or  filing  is  concerned.  St.  Louis  Iron 
&  Machine  Works  v.  Kimball,  53  111.  App.  636;  People  v.  Kirk- 
patrick,  69  111.  App.  207;  Herbert  v.  Rhodes  Burford  Furniture 
Co.,  106  111.  App.  583. 


ILLINOIS.  123 

Recording  Fee. 

There  is  no  provision  for  a  recording  fee  on  conditional 
sale  contracts. 

Re-Recording  or  Renewal. 

No  provision. 

Discharge. 

No  provision. 

Criminal  Liability  of  Vendee. 

No  provision  for  conditional  sale  contract.  Where  chattel 
mortgaged  property  is  sold  or  disposed  of  the  mortgagee  is 
liable  upon  conviction  to  be  fined  twice  its  value  or  be  impris- 
oned in  the  county  jail  not  to  exceed  one  year.  Kurd's  Rev. 
Statutes,  1915.    Chap.  95,  §§  6-7. 

Loss,  Who  Must  Bear. 

The  rule  of  liability  in  this  state  where  property  condition- 
ally sold  is  destroyed  before  payment  in  full  is  not  definitely 
settled.  A  fair  inference  from  the  decisions  made  pertaining  to 
such  facts  would  be  that  if  the  loss  is  expressly  placed  upon  the 
vendee  by  the  wording  of  the  contract,  such  liability  would  be 
enforced.  Cooper  v.  Chicago  Organ  Co.,  58  111.  App.  248; 
Quaker  Mfg.  Co.  v.  Zucker  et  al,  124  111.  App.  547. 

Fixtures. 

Where  property  delivered  under  conditional  sale  contract 
has  been  fastened  to  a  building  in  such  a  manner  that  it  may  be 
removed  without  material  injury  to  the  building  or  to  itself,  the 
vendor  is  entitled  to  possession  of  the  property,  upon  default 
if  no  rights  of  third  parties  have  intervened.     Under  such  cir- 


124  CONDITIONAL  SALES. 

cumstances  where  the  rights  of  third  parties  would  be  affected 
and  the  property  in  question  has  been  securely  fastened  to  the 
building  so  as  to  make  it  a  legal  fixture,  it  seems  probable  that 
no  removal  could  be  had  upon  default.  The  proper  remedy 
would  be  through  an  action  to  foreclose  the  common  law  lien 
of  such  contract,  thereby  affording  an  opportunity  for  a  de- 
termination of  the  rights  of  all  parties  interested.  Sword  v. 
Low,  122  111.  487,  13  N.  E.  826;  Fifield  et  al  v.  Farmers  Na- 
tional Bank  et  al,  148  111.  163,  35  N.  E.  802;  Simpson  Brick 
Press  Co.  v.  Wormley,  61  111.  App.  460;  Kaestner  v.  Day,  65 
111.  App.  623 ;  Andrews  &  Co.  v.  Chandler,  27  111.  App.  103 ; 
Schumacher  v.  Allis  Co.,  70  111.  App.  556. 

Landlord's  Lien. 

A  landlord  has  a  lien  for  rent  on  property  located  on  the 
premises  which  is  prior  to  even  a  chattel  mortgage,  unless  same 
is  recorded  before  the  mortgaged  property  is  moved  upon  his 
premises.  Kurd's  Revised  Statutes  1915,  Chap.  80,  Pages 
1631-1635;  Kellogg  Newspaper  Co.  v.  Peterson,  162  111.  158; 
44  N.  E.  411  ;  Elliott  v.  Emerson  Piano  Co.,  80  111.  App.  51. 

Notes. 

The  giving  of  notes  under  a  conditional  sale  contract  does 
not  supersede  the  instrument  and  is  only  a  convenient  method 
of  evidencing  deferred  payments.  Fleury  &  Co.  v.  Tufts,  25  111. 
App.  loi ;  Hercules  Iron  Works  v.  Hummer,  49  111.  App.  598; 
Walkau  v.  Manitowoc  Seating  Co.,  105  111.  App.  130. 

Election  of  Remedies. 

No  cases  found. 

Repossession  and  Refund. 

The  rule  as  to  refund  upon  repossession  is  not  clearly  de- 
fined, but  would  seem  to  be  that  vendee  is  entitled  to  a  return 


ILLINOIS.  125 

of  all  payments,  less  a  reasonable  sum  to  vendor  for  deprecia- 
tion and  rent  of  the  property  while  in  vendee's  possession. 
Latham  v.  Sumner,  89  111.  233 ;  Bent  v.  Jones,  172  111.  App.  62 ; 
Singer  Mfg.  Co.  v.  Treadway,  4  111.  App.  57;  Branstetter  Motor 
Co.  V.  Silverberg,  140  111.  App.  451. 

Railroad  Equipment. 

Railroad  or  street  railway  equipment  or  rolling-  stock  may 
be  delivered  under  conditional  sale  contract  or  lease  with  op- 
tion to  purchase,  but  in  order  that  such  agreement  shall  be  valid 
as  against  any  subsequent  judgment  creditor  of  or  any  subse- 
quent purchaser  for  a  valuable  consideration  without  notice 
from  the  vendee,  lessee  or  bailee,  the  contract  must  be  in  writ- 
ing signed  by  the  parties  thereto  and  be  acknowledged  by  the 
vendee  in  person  as  deeds  of  real  estate  are  required  to  be  ac- 
knowledged. Such  agreement  shall  then  be  recorded  with  the 
secretary  of  state,  or  a  copy  may  be  filed  in  his  office.  The  fee 
for  filing  being  one  dollar.  Each  locomotive  or  car  so  sold, 
leased  or  loaned  shall  have  the  name  of  the  vendor,  lessor  or 
bailor  plainly  marked  upon  both  sides  thereof,  followed  by  the 
word  owner,  lessor  or  bailor  as  the  case  may  be.  Kurd's  Re- 
vised Statutes  1915,  Chap.  114,  pages  2080-2081,  Sec.  52. 

Chattel  Mortgages. 

Each  note  given  under  a  chattel  mortgage  should  have 
written  or  printed  across  its  face  these  words:  "This  note  se- 
cured by  chattel  mortgage,"  otherwise  the  mortgage  will  be 
void. 

It  is  conceded  as  beyond  all  question  that  a  conditional 
sale  contract  in  Illinois,  even  though  acknowledged  by  the  ven- 
dee in  person  and  recorded,  is  no  protection  as  against  bona  fide 
purchasers  or  mortgagees,  or  attachment  or  execution  creditors 
of  the  vendee. 

It  is  valid  between  the  parties  thereto,  and  as  against  the 
vendee's  assignee  under  state  law,  also  as  against  third  parties 


126  CONDITIONAL  SALES. 

having  actual  notice  of  its  existence.  A  chattel  mortgage  prop- 
erly acknowledged  by  the  mortgagor  and  recorded  is  therefore 
the  only  adequate  security  to  a  vendor  selling  personal  property 
on  time  in  Illinois.  Even  where  this  is  done  the  mortgagee  is 
obliged  to  enforce  his  remedy  by  foreclosure  immediately  upon 
default  or  the  rights  of  third  parties  will  intervene  and  super- 
sede him.  A  debt  secured  by  chattel  mortgage  should  certainly 
not  be  allowed  to  remain  past  due  for  more  than  30  days  before 
the  property  is  seized,  or  foreclosure  begun.  Kurd's  Revised 
Statutes  1915,  Chap.  95,  pages  1767-1773. 

Chattel  Mortgage  Law. 

That  no  mortgage,  trust,  deed  or  other  conveyance  of  per- 
sonal property  having  the  effect  of  a  mortgage  or  lien  upon 
such  property  shall  be  valid  as  against  the  rights  and  interests 
of  any  third  person  unless  possession  thereof  shall  be  delivered 
to  and  remain  with  the  grantee,  or  the  instrument  shall  provide 
for  the  possession  of  the  property  to  remain  with  the  grantor 
and  the  instrument  is  acknowledged  and  recorded  as  herein- 
after directed  and  every  such  instrument  shall  for  the  purpose 
of  this  act  be  deemed  a  chattel  mortgage.  Kurd's  Revised 
Statutes  191 5,  Chap.  95,  Sec.  i. 

Such  instrument  shall  be  acknowledged  before  a  justice  of 
the  peace,  or  the  county  judge  of  the  county  where  the  mortga- 
gor resides,  or  before  the  clerk  or  any  deputy  clerk  of  any 
municipal  court  in  such  county,  or  if  the  mortgagor  is  not  a 
resident  of  the  state  at  the  time  of  making  the  acknowledg- 
ment, then  before  any  officer  authorized  by  law  to  take  ac- 
knowledgment of  deeds ; 

^  Provided,  however,  that  in  counties  having  a  population 
of  more  than  200,000,  such  instrument,  if  the  mortgagor  is  a 
resident  of  the  state  at  the  time  of  making  the  acknowledgment, 
shall  be  acknowledged  before  a  justice  of  the  peace  of  the  town 
or  precinct  where  the  mortgagor  resides,  or  if  there  be  no  jus- 
tice of  the  peace  in   such  town  or  precinct,   such  instrument 


ILLINOIS.  127 

shall  be  acknowledged  before  the  clerk  or  deputy  clerk  of  the 
municipal  court  in  the  district  in  which  the  mortgagor  resides, 
or  if  there  be  no  such  clerk  or  deputy  clerk,  before  the  county 
judge  of  the  county  in  which  the  mortgagor  resides. 

Provided  further  that  such  acknowledgment  may  be  made 
either  by  the  mortgagor  or  a  person  duly  authorized  by  said 
mortgagor  to  act  as  his  attorney  in  fact.  The  instrument  au- 
thorizing such  acknowledgment  shall  be  substantially  in  the 
following  form  : 

I,   ,  the  mortgagor  do  hereby  make. 

constitute  and  appoint my  attorney  in  fact  to 

appear  for  me  and  in  my  behalf  before  (give  name  of  officer 
and  official  title  before  whom  the  acknowledgment  is  to  be 
made),  and  acknowledge  the  execution  of  the  within  instru- 
ment in  my  name  and  for  me  for  all  purposes  as  I  might  do, 
with  the  same  force  and  elTect. 

Given  under  my  hand  and  seal  this day  of 

,  191 


(seal.) 

(Mortgagor). 

The  certificate  of  acknowledgment  if  made  by  the  mortga- 
gor in  person  shall  be  in  the  following  form : 

This  (name  of  instrument)  was  acknowledged  before  me 
by  (name  of  mortgagor).  (When  acknowledgment  is  made 
by  a  resident,  insert  the  words  "and  entered  by  me")  this  .... 
day  of ,  191 ...  . 

Witness  my  hand  and  seal 

(seal.) 

(Name  of  Officer.) 


128  CONDITIONAL  SALES. 

If  the  acknowledgment  is  made  by  an  attorney  in  fact  the 
certificate  of  acknowledgment  shall  be  substantially  in  the  fol- 
lowing form : 

This  (name  of  instrument)  was  acknowledged  before  me 

by  the  within  named   by  (name  of  attorney),  his 

attorney  in  fact  for  all  purposes  named  in  said  instrument,  and 
entered  by  me  this day  of ,  191 . , 


(seal.) 

(Name  of  Officer). 

Said  instrument  authorizing  the  acknowledgment  by  at- 
torney in  fact  as  herein  specified  shall  be  signed  by  the  mort- 
gagor and  shall  be  acknowledged  before  any  officer  authorized 
to  take  acknowledgment  of  deeds.  Kurd's  Revised  Statutes 
1915,  Chap.  95,  Sec.  2. 

If  the  acknowledgment  is  by  a  resident  of  this  state,  the 
justice  of  the  peace,  clerk  or  deputy  clerk  of  the  municipal  court 
or  county  judge  shall  enter  in  his  docket  or  in  some  book  kept 
for  that  purpose,  a  memorandum  thereof  substantially  as  fol- 
lows:  A.  B.  (name  of  mortgagor)  to  C.  D.  (name  of  mortga- 
gee).   Kurd's  Revised  Statutes  1915,  Chap.  95,  Sec.  3. 

Such  mortgage,  trust,  deed  or  other  conveyance  of  personal 
property,  acknowledged  as  provided  in  this  act,  shall  be  ad- 
mitted to  record  by  the  recorder  of  the  county  in  which  the 
mortgagor  shall  reside  at  the  time  the  mortgage  is  executed 
and  recorded,  or  in  case  the  mortgagor  is  not  a  resident  of  the 
state,  then  in  the  county  where  the  property  is  situated  and  kept 
and  shall  thereupon,  if  bona  fide,  be  good  and  valid  from  the 
time  it  is  filed  for  record  until  the  maturity  of  the  entire  debt 
or  obligation  or  extension  thereof  made  as  hereinafter  speci- 
fied: 

Provided  such  time  shall  not  exceed  three  years  from  the 
filing  of  the  mortgage  unless  within  30  days  next  preceding  the 
expiration  of  such  three  years  or  if  the  debt  or  obligation  ma- 


ILLINOIS.  129 

tures  within  such  three  years,  then  within  30  days  next  preced- 
ing the  maturity  of  said  debt  or  obligation,  the  mortgagor  and 
mortgagee,  his  or  their  agent  or  attorney  shall  file  for  record 
in  the  office  of  the  recorder  of  deeds  in  the  county  where  the 
original  mortgage  is  recorded  also  with  the  justice  of  the  peace 
or  his  successor,  upon  whose  docket  the  same  was  entered,  an 
affidavit  setting  forth  particularly  the  interest  which  the  mort- 
gagee has  by  virtue  of  such  mortgage  in  the  property  therein 
mentioned  and  if  such  mortgage  is  for  the  payment  of  money, 
the  amount  remaining  unpaid  thereon  and  the  time  when  the 
same  will  become  due  by  extension  or  otherwise ;  which  affi- 
davit shall  be  recorded  by  such  recorder  and  entered  upon  the 
docket  of  said  justice  of  the  peace  and  thereupon  the  mortgage 
lien  originally  acquired  shall  be  continued  and  extended  for 
and  during  the  term  of  one  year  from  the  filing  of  such  affidavit, 
or  until  the  maturity  of  the  indebtedness  or  extension  thereof 
secured  by  said  mortgage :  Provided  such  time  shall  not  ex- 
ceed one  year  from  the  date  of  filing  such  affidavit.  Kurd's  Re- 
vised Statutes  1915,  Chap.  95,  Sec.  4. 

That  all  notes  secured  by  chattel  mortgages  shall  state 
upon  their  face  that  they  are  so  secured,  and  when  assigned  by 
the  payee  therein  named,  shall  be  subject  to  all  defenses  exist- 
ing between  the  payee  and  payor  of  said  notes,  the  same  as  if 
said  notes  were  held  by  the  payee  therein  named,  and  any  chat- 
tel mortgage  securing  notes  which  do  not  state  upon  their  face 
the  fact  of  such  security  shall  be  absolutely  void.  Kurd's  Re- 
vised Statutes  1915,  Chap.  95,  Sec.  25. 


Recording  Fee. 

The  counties  of  the  state  are  divided  into  three  classes  as 
regards  population  and  fees  are  fixed  for  each  class.  In  gen- 
eral it  may  be  said  the  fee  is  10  cents  for  recording  each  100 
words  and  25  cents  additional  for  an  acknowledgment  or  certifi- 
cate that  the  record  has  been  made.  Kurd's  Revised  Statutes 
1915,  Chap.  53,  §§  13,  14,  17,  Chap.  115.  §§  i,  9. 


130  CONDITIONAL  SALES. 

The  fees  for  acknowledgment  are  35c,  and  15c  per  100 
words  for  docketing  same.  Kurd's  Revised  Statutes  1915, 
Chap.  53,  Sec.  40. 


Forms. 


ACKNOWLEDGMENT   BY   CORPORATION. 

In  case  the  mortgagor  is  a  corporation,  then  the  chattel 
mortgage  should  end  as  follows : 

"In  witness  whereof  the  said   , 

pursuant  to  authority  from  its  Board  of  Directors  or  Trustees, 

has  caused  these  presents  to  be  signed  by 

its  President,  and  countersigned  by  

its  Secretary,  and  its  corporate  seal  to  be  hereto  affixed  this 
day  of ,  191 " 


(Corporate  Seal)  

Attest:  Official  Title. 

Secretary. 


State  of  Illinois, 
County  of 


ss. 


I, ,  a 

in  and  for  said do  hereby  certify  that 

president  of  the  above  named  corporation,  personally  known  to 
me  to  be  the  same  person,  whose  name  is  subscribed  to  the  fore- 
going instrument  as  such  president,  and  to  be  such  president  of 
said  corporation,  appeared  before  me  this  day  in  person  and 
acknowledged  that  he,  as  such,  signed,  sealed  and  delivered 
said  instrument  as  the  free  and  voluntary  act  of  said  corpora- 


ILLINOIS.  131 

tion  and  as  his  own  free  and  voluntary  act,  as  such  president 
thereunto  duly  authorized  for  the  uses  and  purposes  therein  set 
forth.    Entered  by  me  this day  of 191 .  . . 

Given  under  my  hand  and  official  seal  this day  of 

,  191 


Notary  Public  in  and  for 

^  NOTARIAL    i 
1  SEAL       ^ 


132  CONDITIONAL  SALES   (ILLINOIS). 


INDIANA. 


Legal  Status  of  Conditional  Sale  Contracts. 

There  exists  in  this  state  no  statutory  provisions  concern- 
in^^  conditional  sale  contracts,  upon  ordinary  personal  prop- 
erty, but  they  are  recognized  to  the  fullest  extent  by  court  de- 
cisions. Thomas  et  al  v.  Winters  et  al,  12  Ind.  322 ;  Plummer 
&  One  V.  Shirley,  16  Ind.  380;  Dunbar  v.  Rawles,  28  Ind.  225; 
Bradshaw  v.  Warner,  54  Ind.  58;  Payne  et  al  v.  June  et  al,  92 
Ind.  252;  Winchester  Wagon  Works,  etc.,  v.  Carman,  109  Ind. 
31,  9  N.  E.  707;  Baals  v.  Stewart,  109  Ind.  371,  9  N.  E.  403; 
Andre  v.  Murray  et  al,  179  Ind.  576,  loi  N.  E.  81 ;  Keck  etc  v. 
National  Cash  Register  Co.,  12  Ind.  App.  119,  39  N.  E.  899; 
Fredericks  v.  Sault,  19  Ind.  App.  604,  49  N,  E.  909;  Hillel  v. 
Bueltner  etc.  Co.,  113  N.  E.  12;  In  re  Gilligan,  152  Fed.  605. 

How  Executed. 

A  conditional  contract  of  sale  must  be  in  writing  signed 
by  the  vendee  but  does  not  need  to  be  signed  by  the  vendor,  the 
acceptance  of  such  a  contract  on  the  part  of  the  vendor  by  act- 
ing upon  it,  or  shipping  the  goods,  being  sufficient  to  make  a 
binding  contract  as  between  the  parties  thereto.  There  is, 
however,  no  objection  to  the  contract  being  formally  signed 
and  accepted  by  the  vendor. 

Acknowledgment  or  Proof. 

There  is  no  provision  for  acknowledgment  of  a  conditional 
sale  contract  by  the  vendee  or  vendor,  nor  for  proof  by  a  sub- 
scribing witness. 

133 


134  CONDITIONAL  SALES. 

Recording  or  Filing. 

There  is  no  provision  for  recording  or  filing  such  a  con- 
tract, and  it  is  good  as  to  all  parties  without  recording  or  filing 
for  the  term  of  ten  years,  except  perhaps  where  the  property 
becomes  an  irremovable  fixture. 

Recording  Fee. 

No  fee  chargeable  as  no  record  is  necessary. 

Re-Recording  or  Renewal. 

No  provision. 

Discharge. 

No  provision. 

Criminal  Liability  of  Vendee. 

No  provision. 

Loss,  Who  Must  Bear. 

The  vendor  under  conditional  contract  of  sale  is  entitled 
to  recover  the  balance  unpaid  on  property  destroyed  while  in 
the  vendee's  possession,  even  though  destroyed  through  no 
fault  of  said  vendee.  Jessup  v.  Fairbanks,  Morse  &  Co.,  38  Ind. 
App.  673,  78  N.  E.  1050. 

Fixtures. 

It  has  been  held  in  this  state  as  in  many  others  that  unless 
the  property  delivered  under  conditional  contract  of  sale  is  at- 
tached to  a  building  in  such  a  manner  that  it  can  be  removed 
without  material  injury  to  the  building  or  to  itself,  or  to  both, 
the  vendor  is  entitled  to  possession  where  the  contract  is  not 
complied  with.  When  the  article  becomes  so  attached  to  the 
building  as  to  become  a  material  part  thereof  and  cannot  be  re- 


INDIANA.  135 

moved  without  great  injury  to  the  building  or  to  itself,  or  to 
both,  it  seems  a  lien  for  the  balance  unpaid  might  be  enforced 
by  an  action  in  equity,  although  this  proposition  is  not  defin- 
itely settled.  Brass  Fdry.  &  Mach.  Works  v.  Gallentine  et  al, 
99  Ind.  525;  Binkley  v,  Forkner  et  al,  117  Ind.  176,  19  N.  E. 
753;  Ward  V.  Yarnelle,  173  Ind.  535,  91  N.  E.  7;  Sears  v. 
Shrout,  24  Ind.  App.  313,  56  N.  E.  728. 

Landlord's  Lien. 

The  owner  of  a  building  into  which  property  held  under 
conditional  contract  of  sale  is  moved  does  not  have  a  prior  lien 
upon  such  property  for  rent  of  the  premises. 

Notes, 

Notes  given  under  conditional  sale  contract  are  presump- 
tive payment  only  in  this  state,  and  such  presumption  may  be 
rebutted,  either  by  external  evidence  or  by  a    clause    to    that 
effect  in  the  contract  itself.     Domestic  Sewing  Machine  Co.  v 
Arthurhultz,  63  Ind.  322;  Baals  v.  Stewart,  109  Ind.  371,  9  N 
E.  403;  Keck  etc.  v.  National  Cash  Register  Co.,  12  Ind.  App 
119,  39  N.  E.  899;  Heyns  et  al  v.  Meyer  et  al,  46  Ind.  App.  45 
91  N.  E.  973;  Orner  et  al.  v.  Sattley  Mfg.  Co.,  18  Ind.  App 
122,  47  N.  E.  644. 

Election  of  Remedies. 

The  courts  have  laid  down  the  rule  that  where  the  vendor 
elects  to  secure  a  money  judgment  under  the  contract,  he  can- 
not afterwards  take  possession  of  the  property,  even  though 
his  judgment  is  not  paid.  Green  v.  Sinker,  Davis  &  Co.,  135 
Ind.  434,  35  N.  E.  262;  Smith  v.  Barber,  153  Ind.  322,  53  N.  E. 
1014;  Elwood  State  Bank  v.  Mock,  40  Ind.  App.  685,  82  N.  E. 
1003. 

Repossession  and  Refund. 

Where  a  conditional  sale  contract  provides  that  ujion  de- 
fault and  repossession  no  refund  shall  be  paid,  then  such  a  pro- 


136  CONDITIONAL  SALES. 

vision  is  enforceable.  Shireman  v.  Jackson,  14  Ind.  459; 
Singer  Sewing  Machine  Co.  v.  Phipps,  49  Ind.  App.  116,  94  N. 
E.  793 ;  Quality  Clothes  Shop  v.  Keeney,  57  Ind.  App.  500,  106 
N.  E.  541;  Hodson  v.  Warner,  60  Ind.  214;  Green  v.  Sinker 
Davis  Co.,  135  Ind.  434,  35  N.  E.  262. 

Railroad  Equipment. 

Railroad  equipment  or  rolling  stock  may  be  delivered  un- 
der conditional  sale  contract  or  lease  with  option  to  purchase. 
Such  contract  must  be  in  writing,  should  be  signed  by  all  par- 
ties thereto  and  in  order  to  be  valid  and  efifectual  as  against  all 
purchasers  and  creditors,  must  be  acknowledged  by  the  vendee 
or  lessee,  and  be  recorded  within  60  days  after  its  execution, 
with  the  secretary  of  state.  When  the  vendor  is  a  citizen  of 
Indiana  then  in  addition  to  the  recording  hereinbefore  required 
the  contract  shall  be  recorded  in  the  county  where  the  vendor 
resides  (presumably  with  the  county  recorder).  Fees  to  the 
secretary  of  state  10  cents  per  100  words.  Fees  to  county  re- 
corder 10  cents  per  100  words,  no  charge  less  than  50  cents. 

Each  locomotive  engine  or  car  so  sold  or  leased  shall  have 
the  name  of  the  vendor  or  lessor,  or  his  or  its  assignee  plainly 
placed  or  marked  on  each  side  thereof,  or  be  otherwise  marked 
so  as  to  indicate  the  ownership  thereof.  Such  contract  is  valid 
for  the  term  of  10  years.  Burns  Statutes,  §§  5526-5530,  7206, 
7327- 

Electrical  equipment  for  street  railroads  may  be  delivered 
under  conditional  sale  contract  or  lease  with  option  to  pur- 
chase. Such  contract  must  be  in  writing  signed  by  the  parties 
thereto  and  in  order  that  same  shall  be  valid  and  effectual  as 
to  all  purchasers  and  creditors  it  must  be  acknowledged  by  the 
vendee  or  lessee  and  be  recorded  within  30  days  after  its  execu- 
tion with  the  county  recorder  of  the  county  where  the  street 
railroad  is  located  and  operated.  Fees  to  the  county  recorder 
10  cents  for  each  100  words,  no  charge  to  be  less  than  50  cents 
Burns  Statutes,  §§  5700-5702,  7327. 


IOWA. 


Legal  Status  of  Conditional  Sale  Contracts. 

Conditional  contracts  of  sale  are  recognized  by  statute 
law  in  this  state.  Code  of  Iowa  §§  2905,  2906.  As  amended  by 
Laws  1917,  Chap.  154;  Crooker  Bros.  &  One  v.  Brown.  40 
Iowa  144;  Conable  v.  Lynch,  45  Iowa  84;  Bayliss  v.  Davis,  47 
Iowa  340;  In  re:  Wise,  121  Iowa  359,  96  N.  W.  872;  Bank  of 
Corning  v.  Reid,  122  Iowa  280,  98  N.  W.  107;  Rock  Island 
Plow  Co.  V.  Maynard  Savings  Bank  et  al,  123  Iowa  640,  99  N. 
W.  298;  Richards  v.  Hellen  &  Son,  153  la.  66,  133  N.  W.  393; 
Port  Huron  Machinery  Co.  v.  Hurto,  154  Iowa  435,  135  N.  W. 
31  ;  Elijah  &  Winne  v.  Mottinger,  161  Iowa  371,  142  N.  W. 
1038;  Parsons  Co.  v.  U.  S.  Fidelity  &  G.  Co.,  225  Fed.  252;  U. 
S.  Fidelity  etc.  Co.  v.  Parsons  Co.,  235  Fed.  114;  Emerson 
etc.  Co.  V.  Lawson,  237  Fed.  877. 

How  Executed, 

A  conditional  contract  of  sale  must  be  in  writing  signed  by 
the  vendee  or  vendor,  and  in  order  that  it  may  be  recorded  must 
be  acknowledged  by  the  vendee  or  vendor  in  person.  It  seems 
advisable  to  have  such  contract  executed  by  vendee  and  ven- 
dor so  that  same  may  be  acknowledged  by  any  party  if  neces- 
sary. Singer  Sewing  Machine  Co.  v.  Halcomb,  40  Iowa  33; 
Garr  Scott  Co.  v.  Nichols,  115  Iowa  223,  88  N.  W.  382;  Hand- 
Ian  Buck  Mfg.  Co.  V.  Waterloo  Drop  Forge  Co.  et  al.  173  Iowa 
452,  155  N.  W.  802. 

Acknowledgment  or  Proof. 

A  conditional  contract  of  sale  is  valid  as  between  the  par- 
ties thereto  without  any  formality  in    the    way    of    acknowl- 

137 


138  CONDITIONAL  SALES. 

edgment  or  proof,  or  filing  or  recording;  but  in  order  to  make 
it  valid  and  to  hold  title  as  against  any  creditor  or  purchaser 
of  the  vendee,  in  actual  possession  obtained  in  pursuance 
thereof  without  notice,  it  is  necessary  that  the  contract  be  filed 
for  record.  The  perfection  of  such  a  contract  so  that  it  may 
be  recorded  is  efifected  by  having  same  acknowledged  by  the 
vendee  or  vendor.  It  is  not  necessary  to  have  it  signed  or 
proven  by  a  subscribing  witness. 

Recording  or  Filing. 

The  original  contract  duly  signed  and  acknowledged  by 
the  vendee  or  vendor  must  be  recorded  with  the  county  re- 
corder (who  is  the  register  of  deeds)  in  the  county  where  the 
holder  of  the  property  resides.  There  is  no  special  provision 
as  to  time,  but  the  recording  should  be  made  before  vendee  gets 
possession  of  the  property,  if  possible.  Code  of  Iowa,  §§  2905, 
2906.  As  amended  by  Laws  1917,  Chapter  154;  Warner  v. 
Jameson  et  al,  52  Iowa  70,  2  N.  W.  951 ;  Warner  v.  Johnson, 
65  Iowa  126,  21  N.  W.  483 ;  Moline  Plow  Co.  v.  Braden,  71 
Iowa  141,  32  N.  W.  247;  Vorse  v.  Loomis,  86  Iowa  522,  53  N. 
W.  314;  National  Cash  Register  Co.  v.  Maloney,  95  Iowa  573, 
64  N.  W.  618. 

Recording  Fee. 

Fee  to  the  recording  officer  is  fifty  cents  for  an  instrument 
of  four  hundred  words  or  less,  and  ten  cents  for  each  addi- 
tional one  hundred  words  or  part  thereof.  Code  of  Iowa,  § 
498. 

Re-Recording  or  Renewal. 

When  so  recorded  such  a  contract  is  valid  for  ten  years. 
There  is  no  provision  for  re-recording  or  renewal. 

Discharge. 

There  is  no  express  provision  for  discharge  after  payment, 
but  it  is  alwavs  advisable  to  discharge  such  a  contract  after 


IOWA.  139 

payment,  upon  request  of  the  vendee  or  his  assigns.  The  dis- 
charge may  be  made  by  recording  a  written  instrument  duly 
acknowledged  by  the  vendor,  or  by  making  a  notation  of  dis- 
charge upon  the  margin  of  the  record. 

Criminal  Liability  of  Vendee. 

No  provision. 

Loss,  Who  Must  Bear. 

No  cases  found. 

Fixtures. 

Where  property  sold  under  conditional  contract  of  sale 
has  been  fastened  to  a  building  in  such  a  manner  that  it  may 
be  removed  without  material  injury  to  the  building  or  to  itself, 
the  vendor  is  entitled  to  take  possession  upon  non-payment 
provided  the  contract  has  been  filed  for  record. 

Where  the  article  has  become  incorporated  into  the 
building  so  as  to  become  a  material  part  thereof,  the  vendor 
would  undoubtedly  not  be  permitted  to  take  possession  but 
could  enforce  his  rights  in  a  court  of  equity  against  the  build- 
ing itself.  Snowden  v.  Craig  &  Co.,  26  Iowa  156;  Hull  v.  Alex- 
ander et  al,  26  Iowa  569;  Denham  v.  Sankey  et  al,  38  Iowa 
269;  First  National  Bank  v.  Elmore,  52  Iowa  541;  Miller  v. 
Wilson,  71  Iowa  610;  Thomson  v.  Smith,  iii  Iowa  718,  83  N. 
W.  789;  Allis-Chalmers  Co.  v.  City  of  Atlantic,  164  Iowa  8,  144 
N.  W.  346 ;  Hoover  etc.  v.  City  of  Atlantic,  144  N.  W.  635. 

Notes. 

The  giving  of  notes  under  a  conditional  sale  contract  does 
not  ordinarily  operate  to  supersede  such  a  contract.  Care  should 
be  taken,  however,  that  not  too  great  a  portion  of  the  contract 
itself  shall  be  included  in  the  notes,  for  under  such  circum- 
stances it  might  become  necessary  to  file  or  record  same,  and 
the  notes  would  be  made  non-negotiable.  National  Cash  Regis- 
ter Co.  V.  Zangs  &  One,  127  Iowa  710,  104  N.  W.  360. 


140  CONDITIONAL  SALES. 

Election  of  Remedies. 

If  the  vendor  of  goods  conditionally  sold  brings  action  for 
a  money  judgment,  he  is  deemed  to  have  waived  his  lien  or 
title  thereby  and  cannot  afterwards  replevin  the  .property. 
Richards  et  al  v.  Schreiber  et  al,  98  Iowa  422,  67  N.  W.  569; 
Gigray  v.  Mumper,  141  Iowa  396,  118  N.  W.  393;  Nauman  v. 
Bradshaw,  193  Fed.  350. 

Repossession  and  Refund. 

No  cases  found. 

Railroad  Equipment. 

Conditional  sale  contracts  or  leases  with  option  to  pur- 
chase may  be  made  covering  railroad  or  steam  railway  equip- 
ment or  rolling  stock,  or  power  house  electric,  or  other  equip- 
ment of  street  or  interurban  railways,  or  of  electric  light  or 
power  or  steam  heating  companies.  Such  contracts  must  be 
in  writing  signed  by  all  parties  thereto  and  in  order  to  be  valid 
as  against  subsequent  judgment  creditors  or  subsequent  bona 
fide  purchasers  for  value  and  without  notice,  same  must  be  ac- 
knowledged by  the  vendee  or  lessee  in  person  and  must  be  filed 
for  record  with  the  secretary  of  state.  Each  locomotive  engine, 
stationary  engine,  boiler,  switchboard,  transformer,  motor  or 
other  piece  of  machinery  or  appliance  or  car  so  sold,  leased  or 
hired  shall  have  the  name  of  the  vendor,  lessor,  or  bailor  plainly 
marked  on  each  side  thereof,  followed  by  the  word  "owner." 
"lessor"  or  "bailor"  as  the  case  may  be.  When  the  contract 
shall  have  been  paid  in  full  the  vendor,  lessor,  or  bailor,  or  his 
or  its  assignee  may  release  same  from  record  by  making  a 
declaration  to  that  effect,  upon  the  margin  of  the  record  duly 
attested,  or  it  may  be  made  by  a  separate  instrument  acknowl- 
edged by  the  vendor,  lessor  or  bailor  or  his  or  its  assignee  and 
recorded  with  the  secretary  of  state.  The  fees  for  recording  are 
ten  cents  per  100  words,  no  charge  to  be  less  than  $1.00.  Where 
the  declaration  of  release  is  made  upon  the  margin  of  the  rec- 
ord, a  fee  of  Si. 00  is  chargeable.     Code  of  Iowa,  §  2051.  2052. 


IOWA.  141 

Forms. 

ACKNOWLEDGMENT  BY  INDIVIDUAL. 

State  of  Iovva,  ) 

County  of  Keokuk.  \ 

On  this  I2th  day  of  July,  A.  D.  1917,  before  me  personally 
appeared  Fred  E.  Marsh,  to  me  known  to  be  the  identical  per- 
son named  in  and  who  executed  the  foregoing  instrument  and 
acknowledged  that  he  executed  same  as  his  voluntary  act  and 
deed. 

Henry  Hutchins, 
Notary  Public  in  and  for . 

(  NOTARIAL 
1        SEAL. 

ACKNOWLEDGMENT   BY   CORPORATION. 
State  of  Iowa, 


ss 
County  of  Muscatine.   '" 

On  this  I2th  day  of  July  A.  D.,  1917,  before  me  appeared 
William  Parker,  to  me  personally  known,  who  being  by  me 
duly  sworn  (i)  did  say  that  he  is  the  President  of  the  Little 
Falls  Furniture  Company  and  that  the  seal  (2)  affixed  to  said 
instrument  is  the  corporation  seal  of  said  corporation,  and  that 
said  instrument  was  signed  and  sealed  in  behalf  of  said  corpor- 
ation by  authority  of  its  Board  of  Directors,  (3)  and  said  Wil- 
liam Parker  acknowledged  said  instrument  to  be  the  voluntary 
act  and  deed  of  said  corporation. 

Earle  H.  Dorm  an, 

Notary  Public  in  and  for . 

^  notarial  I 
1      seal.       \ 

1.  "affirmed"  may  be  substituted  if  desired. 

2.  In  case  the  corporation  has  no  corporation  seal,  omit 
the  words  "the  seal,  etc."  and  add  at  the  end  of  the  affidavit  the 
words  "and  that  said  corporation  has  no  corporation  seal." 

3.  or  "Trustees"  as  the  case  may  be. 


142  CONDITIONAL  SALES. 

Officers  Before  Whom  Acknowledgments  May  Be  Taken. 

Within  the  State.  A  judge  or  clerk  of  any  court  of  record ; 
a  county  auditor  or  deputy ;  a  justice  of  the  peace  or  a  notary 
public  within  his  county  or  in  an  adjoining  county  within  which 
he  has  filed  a  certificate  of  his  appointment. 

Without  the  State  hut  Within  the  United  States.  A  commis- 
sioner of  deeds  appointed  by  the  Governor  of  Iowa ;  any  notary 
public  with  a  seal ;  a  judge  of  any  court  of  record  or  any  officer 
holding  the  seal  thereof;  any  justice  of  the  peace  or  any  other 
officer  authorized  to  take  acknowledgments,  but  in  any  of  these 
latter  cases  the  official  character  of  the  officer  acting  and  the 
genuineness  of  his  signature  must  be  duly  certified  under  the 
seal  of  court  by  the  judge  or  clerk  of  a  court  of  record  of  the 
county  or  district  in  which  the  acknowledgment  is  taken.  The 
general  form  of  certificate  to  be  used  in  such  cases  is  as  follows  : 


CERTIFICATE  OF  COUNTY  CLERK. 


State  of  Ohio,  ) 

\-  ss  ' 

County  of  Clermont,   j 

I,  Edward  Eckhart,  Clerk  of  the  County  Court  in  and  for 
said  County,  which  court  is  a  court  of  record  having  a  seal,  do 
hereby  certify  that  Harrison  C.  Wellman,  by  and  before  whom 
the  foregoing  acknowledgment  was  taken,  was  at  the  time  of 
taking  same  a  notary  public  residing  in  said  county  and  was 
duly  authorized  by  the  laws  of  said  state  to  take  and  certify 
acknowledgments  or  proofs  of  deeds  of  land  in  said  state,  and 
that  said  conveyance  and  the  acknowledgment  thereto  are  in 
due  form  of  law ;  and,  further,  that  I  am  well  acquainted  with 
the  handwriting  of  said  Harrison  C.  Wellman  and  that  I  verily 


IOWA.  143 

believe  that  the  signature  to  said  certificate  of  acknowledgment 
is  genuine. 

In  Witness  Whereof,  I  have  hereunto  set  my  hand  and  af- 
fixed the  seal  of  the  said  Court  this  12th  day  of  July  A.  D.  1917. 

Clerk  of  the  County  Court  of  Clermont  County. 

Franklin  May, 

( SEAL  OF 
1     COURT 


144  CONDITIONAL  SALES    (iOWA), 


KANSAS. 


Legal  Status  of  Conditional  Sale  Contracts, 

Conditional  contracts  of  sale  are  provided  for  by  statute 
law  in  this  state.  General  Statutes  Ann.  §  6508;  Powell  v.  Wal- 
lace, 44  Kas.  656,  25  Pac.  42 ;  Poorman  Bros.  v.  Witman,  49 
Kas.  697,  31  Pac.  370;  Standard  Implement  Co.  v.  Parlin  & 
Orendorff  Co.,  51  Kas.  544,  33  Pac.  360;  McCormick  etc.  Co.  v. 
Lewis,  52  Kas.  358,  35  Pac.  12;  Renoe  v.  Western  Star  Mill- 
ing Co.,  53  Kas.  255,  36  Pac.  329;  Moline  Plow  Co.  v.  Rodgers 
et  al,  53  Kas.  743,  37  Pac.  iii  ;  Otto  Gas  Engine  Co.  v.  Hare 
et  al,  64  Kas.  78,  67  Pac.  444;  Van  Arsdale  v.  Peacock  and 
One,  90  Kas.  347,  133  Pac.  703;  Big  Four  Implement  Co.  v. 
Wright,  207  Fed.  535. 

How  Executed. 

They  must  be  in  writing  signed  by  the  vendee,  but  need 
not  be  signed  by  the  vendor,  the  acceptance  of  such  a  contract 
on  the  part  of  the  vendor  by  acting  upon  it,  or  shipping  the 
goods,  being  sufficient  to  make  a  binding  contract  as  between 
the  parties  thereto.  There  is,  however,  no  objection  to  the  con- 
tract being  formally  signed  and  accepted  by  the  vendor.  Gen- 
eral Statutes  Ann.  §  6508;  Osborne  &  Co.  v.  O'Connor  et  al,  4 
Kas.  App.  609,  46  Pac.  327. 

Acknowledgment  or  Proof. 

Such  a  contract  is  valid  as  between  the  parties  thereto 
without  further  formality  in  the  way  of  acknowledgment  or 
proof  or  filing  or  recording ;  but  in  order  to  make  it  valid  and  to 

145 


146  CONDITIONAL  SALES. 

hold  title  as  against  innocent  purchasers  from  or  creditors  of 
the  vendee  the  contract  must  be  filed.  It  is  not  necessary  that 
the  instrument  should  be  acknowledged  by  the  vendee  or  ven- 
dor, nor  that  it  be  signed  or  proven  by  a  subscribing  witness  in 
order  to  be  so  filed.    General  Statutes  Ann.  §  6508. 

Recording  or  Filing. 

The  original  contract  duly  signed  by  the  vendee  or  a  true 
copy  thereof  should  be  filed,  there  is  no  provision  for  recording. 
No  definite  time  is  prescribed  within  which  such  filing  must  be 
made,  but  in  order  to  be  valid  beyond  question  as  to  all  per- 
sons it  should  be  filed  before  the  vendee  gets  possession  of  the 
property.  The  filing  should  be  made  with  the  register  of 
deeds  for  the  county  where  the  property  is  kept.  General 
Statutes  Ann.  §  6508;  Larned  National  Bank  v.  Tufts,  53  Kas. 
710,  37  Pac.  127. 

Recording  Fee. 

The  register  of  deeds  is  entitled  to  a  fee  of  25  cents  for  fil- 
ing such  a  contract.    General  Statutes  Ann.  §  4720. 

Re-Recording  or  Renewal. 

Such  a  contract  does  not  need  to  be  refiled  or  renewed  and 
is  valid  for  the  term  of  five  years.  General  Statutes  Ann.  § 
6508. 

Discharge. 

After  payment  a  conditional  contract  of  sale  must  be  dis- 
charged from  record  within  60  days  after  demand  therefor,  un- 
der penalty  of  $100.00  fine,  and  attorney's  fees,  and  such  other 
damages  as  the  evidence  in  the  case  will  warrant.  Fees  for  fil- 
ing discharge  25  cents.  General  Statutes  Ann.  §§  4720,  6471, 
6502,  6509. 


KANSAS.  147 

Criminal  Liability  of  Vendee. 

No  provision. 

Loss,  Who  Must  Bear. 
No  cases  found. 

Fixtures. 

It  is  well  settled  in  this  state  that  upon  non-payment  the 
vendor  has  a  right  to  take  possession  of  property  conditionally 
sold  and  attached  to  a  building,  if  such  property  can  be  re- 
moved w^ithout  material  damage  to  the  building  or  to  itself. 
Eves  v.  Estes,  10  Kas.  314;  Rowand  v.  Anderson,  33  Kas.  264, 
6  Pac.  255;  Marshall  v.  Bacheldor,  47  Kas.  442,  28  Pac.  168; 
Geppelt  et  al  v.  Kansas  Middle  West  Stone  Co.,  90  Kas.  539, 
135  Pac.  573;  St.  Mary's  Machine  Co.  v.  Tola  Mill  Co.,  97 
Kas.  464,  155  Pac.  1077;  In  re:  Sunflow^er  State  Refining  Co., 
Bank  of  Commerce  etc.  v.  Carbondale  Machine  Co.,  195  Fed. 
180. 

Landlord's  Lien. 

There  is  no  provision  of  lav^  giving  a  landlord  any  lien  for 
rent  upon  property  located  on  his  premises,  and  he  certainly 
has  no  rights  against  property  held  under  conditional  contract 
of  sale  where  that  contract  was  duly  filed  before  the  article  was 
moved  into  his  building. 

Notes. 

Notes  may  ordinarily  be  secured  under  conditional  sale 
contract  as  they  evidence  a  convenient  system  of  payment,  and 
do  not  supersede  the  contract  itself.  Care  should  be  exercised 
that  not  too  great  a  portion  of  said  contract  be  included  in  the 
notes  as  such  a  situation  makes  the  notes  non-negotiable  and 
may  be  cause  for  requiring  that  same  be  filed  or  recorded. 


148  CONDITIONAL  SALES. 

Election  of  Remedies. 

Where  the  vendor  under  conditional  contract  of  sale  brings 
an  action  for  money  judgment  on  his  contract,  this  is  deemed 
to  be  a  waiver  of  his  lien  upon  or  title  in  the  property  and  he 
cannot  afterwards  replevin  it,  even  though  the  judgment  is  not 
paid.  Moline  Plow  Co.  v.  Rodgers  et  al,  53  Kas.  743,  37  Pac. 
III. 


Repossession  and  Refund. 

There  have  been  decisions  in  this  state  upon  various  ques- 
tions concerning  repossession  and  refund,  but  no  definite  rule 
has  been  laid  down  that  the  vendor  must  repay  all  or  any  por- 
tion of  the  money  received  where  he  takes  the  property  back  on 
default.  Fleck  v.  Warner,  25  Kas.  492 ;  Hydraulic  Press  Mfg. 
Co.  V.  Whetstone,  63  Kas.  704;  66  Pac.  989;  Christie  v  Scott,  JJ 
Kas.  257;  94  Pac.  214. 


Railroad  Equipment. 

Railroad  or  street  railway  equipment  or  rolling  stock  may 
be  delivered  under  conditional  sale  contract  or  lease  with  op- 
tion to  purchase,  and  in  order  that  same  shall  be  valid  as  to 
subsequent  judgment  creditors  of,  or  subsequent  bona  fide  pur- 
chasers from  vendee,  the  contract  must  be  in  writing  signed  by 
all  parties  thereto,  and  must  be  acknowledged  by  the  vendee, 
lessee,  or  bailee  as  the  case  may  be,  or  be  duly  proven,  after 
which  it  must  be  filed  for  record  with  the  secretary  of  state. 
Each  locomotive  engine  or  car  so  sold,  leased  or  hired  shall  have 
the  name  of  the  vendor,  lessor  or  bailor  plainly  marked  on  each 
side  thereof  followed  by  the  word  "owner,"  or  "lessor"  or 
"bailor"  as  the  case  may  be.  When  such  a  contract  shall  have 
been  paid  in  full  it  may  be  released  by  a  declaration  in  writing 
made  on  the  margin  of  the  record,  duly  attested,  or  by  a  sepa- 
rate instrument  duly  acknowledged  and  recorded.    The  declara- 


KANSAS. 


149 


tion  or  the  release  in  writing  shall  be  made  by  the  vendor, 
lessor  or  bailor  or  his  or  its  assigns.  Fees  to  the  secretary  of 
state  are  $2.00  for  recording  the  contract  or  release  in  writing, 
and  $1.00  for  noting  the  release  upon  the  margin  of  the  record. 
General  Statutes  Ann.  §§  8714,  8715. 


150  CONDITIONAL  SALES    (kANSAs). 


KENTUCKY. 


Legal  Status  of  Conditional  Sale  Contracts. 

Conditional  sale  contracts  are  not  provided  for  by  statute 
law  in  this  state,  but  they  are  held  by  the  courts  to  be  an  abso- 
lute sale  of  the  property  with  a  mortgage  back.  Wicks  Bro.  v. 
McConnell,  102  Ky.  434;  43  S.  W.  205;  In  re:  Kreuger,  199 
Fed.  367. 

How  Executed. 

They  must  be  in  writing  signed  by  the  vendee  but  need 
not  be  signed  by  the  vendor,  the  acceptance  of  such  a  contract 
on  the  part  of  the  vendor  by  acting  upon  it  or  shipping  the 
goods  being  sufficient  to  make  a  binding  contract  as  between 
the  parties  thereto.  There  is,  however,  no  objection  to  the  con- 
tract being  formally  signed  and  accepted  by  the  vendor.  Bald- 
win &  Co.  V.  Crow  et  al,  86  Ky.  679;  7  S.  W.  146;  Welch  v. 
National  Cash  Register  Co.,  19  Ky.  L.  R.  1664;  44  S.  W.  124; 
Greer  v.  Church  &  Co.,  13  Bush  430;  Hart  v.  Barney  &  Smith 
Mfg.  Co.,  7  Fed.  543. 

Acknowledgment  or  Proof. 

Such  a  contract  is  valid  as  between  the  parties  thereto 
without  acknowledgment  or  proof,  or  filing  or  recording,  but 
in  order  to  make  it  valid  and  to  hold  title  as  against  third  par- 
lies, it  should  unquestionably  be  recorded.  In  order  that  such 
a  contract  may  be  recorded  the  vendee  must  acknowledge 
same  in  person,  or  otherwise  it  must  be  signed  by  two  subscrib- 
ing witnesses,  either  one  of  whom  may  prove  the  execution  of 


152  CONDITIONAL  SALES, 

the   contract  and   the   attestation  of   the   other   witness.     Ky. 
Statutes,  §§  495,  496,  501. 

Recording  or  Filing. 

The  original  contract  duly  signed  by  the  vendee  must 
be  recorded  in  order  to  hold  title  as  against  purchasers  without 
notice  or  creditors.    There  is  no  provision  for  filing. 

No  express  provision  exists  as  to  the  time  within  which 
such  a  contract  must  be  recorded,  but  in  order  to  hold  title  as 
against  all  persons  and  all  conditions  it  should  be  recorded  be- 
fore vendee  gets  possession. 

If  the  vendee  does  not  acknowledge  the  contract  in  person, 
two  persons  must  sign  the  same  as  subscribing  witnesses  to  his 
signature,  and  one  of  these  must  swear  to  its  execution  to  en- 
title the  contract  to  be  recorded.  The  salesman  who  secures 
the  order  for  the  vendor  may  act  as  one  subscribing  witness, 
provided  he  does  not  also  execute  the  contract  for  and  on  be- 
half of  the  vendor.  AVhere  such  a  contract  has  been  signed  by 
two  subscribing  witnesses  to  the  vendee's  signature,  and  it  be- 
comes necessary  to  record  same,  the  original  instrument  may 
be  sent  to  the  witness  who  is  friendly  to  the  vendor,  who  makes 
oath  that  he  saw  same  duly  signed  and  executed  by  the  vendee, 
and  that  he  signed  it  himself  as  a  witness,  and  that  the  other 
subscribing  witness  also  saw  the  contract  signed  and  executed 
by  vendee,  and  likewise  signed  his  name  thereto.  The  instru- 
ment may  then  be  recorded. 

The  statute  provides  all  deeds  and  mortgages  and  other 
instruments  of  writing,  which  are  required  by  law  to  be  re- 
corded in  order  to  be  efifectual  against  purchasers  without  no- 
tice or  creditors  shall  be  recorded  in  the  clerk's  office  of  the 
court  of  the  county  in  which  the  property  conveyed  or  the 
greater  part  thereof  may  be. 

Notwithstanding  this  apparently  plain  statement,  the 
courts  have  held  that  the  situs  of  personal  property  is  the 
domicile  of  its  owner,  and  followinof  out  this  reasoning  have  de- 


KENTUCKY.  I53 

clared  that  no  matter  where  the  personal  property  may  actually 
be  located  within  the  state,  it  is  deemed  in  law  to  be  at  the 
domicile  of  its  owner,  and  a  chattel  mortgage  or  conditional 
sale  contract  in  order  that  same  may  be  effectual  against  pur- 
chasers without  notice,  or  creditors,  must  be  recorded  in  the 
county  where  the  owner  of  the  property  covered  thereby  has 
his  domicile.  In  case  the  owner,  chattel  mortgagor,  or  condi- 
tional vendor,  has  no  domicile  within  the  state  then  un- 
doubtedly the  recording  should  be  made  in  the  county  where 
the  property  or  the  greater  part  thereof  may  be  located  within 
the  state.  Ky.  Statutes,  §§  495,  496,  501 ;  Baldwin  &  Co.  v. 
Crow  et  al,  86  Ky.  679;  Coppage  v-  Johnson,  107  Ky.  620,  55 
S.  W.  424;  Burbank  &  One  v.  Babbitt,  157  Ky.  524,  163  S.  W. 
457 ;  Three  Forks  Co.  et  al  v.  Smith  et  al,  17  Ky.  L.  R.  566, 
32  S.  W.  167;  Baldwin  &  Co.  v.  Warren  et  al,  18  Ky.  L^  R. 
1 102,  39  S.  W.  25;  Day  &  One  v.  Mack,  24  Ky.  L.  R.  640,  69 
S.  W.  712;  In  re:  Ducker,  133  Fed.  771  ;  Afifirmed.  134  Fed.  43; 
In  re:  Lausman,  183  Fed.  647. 

Recording  Fee. 

The  fee  for  recording  such  a  contract  is  $1.00  and  in  ad- 
dition a  tax  of  fifty  cents  to  the  state  must  be  paid  on  each  con- 
tract for  the  sum  of  more  than  $200.00.  Ky.  Statutes,  §§  1720, 
4238. 

Re-Recording  or  Renewal. 

The  contract  is  valid  for  the  term  of  fifteen  years.  There 
is  no  provision  for  re-recording  or  renewal. 

Discharge. 

There  is  no  law  providing  for  a  discharge  of  such  an  in- 
strument after  payment.  It  is,  however,  always  best  upon  the 
re(|uest  of  vendee  or  any  other  proper  parties  to  discharge  such 
a  contract  from  record  after  payment  in  full.  Fee  for  discharg- 
ing a  chattel  mortgage  twenty-five  cents.  Ky.  Statutes.  §  498, 
1720. 


154  CONDITIONAL  SALES. 

Criminal  Liability  of  Vendee. 

It  shall  be  unlawful  for  any  person  having  the  possession 
of  personal  property  the  title  to  which  is  vested  in  another,  to 
sell  or  otherwise  dispose  of  such  property  without  the  written 
consent  of  the  person  in  whom  the  title  is  vested.  Any  person 
guilty  of  such  olTense  shall  be  fined  not  less  than  $100.00  or 
more  than  $500.00  for  each  offense.  Any  person  having  notice 
of  the  manner  in  which  such  property  is  held,  who  shall  pur- 
chase it  of  the  person  having  the  possession  thereof,  or  of  any 
other  person  without  the  written  consent  of  the  person  in  whom 
the  title  is  vested,  shall  be  fined  not  less  than  $100.00  or  more 
than  $1,000.00  for  each  oiTense.    Ky.  Statutes,  §  1358  B. 

Loss,  Who  Must  Bear. 

No  cases  found. 

Fixtures. 

WHiere  personal  property  delivered  under  conditional  sale 
contract  has  been  attached  in  a  permanent  way  to  real  estate 
same  becomes  a  fixture  and  cannot  be  removed,  especially  if 
the  rights  of  third  parties  have  intervened.  New  York  Se- 
curity Co.  V.  Capital  Ry.  Co.,  ']']  Fed.  529. 

Landlord's  Lien. 

A  landlord  has  no  lien  for  rent  upon  property  sold  under 
conditional  contract  of  sale,  if  the  contract  is  made  before  such 
property  is  moved  upon  his  premises.  Where,  however,  the 
contract  is  made  while  the  property  is  located  on  leased  prem- 
ises the  landlord's  lien  for  rent  will  be  prior  to  such  contract. 
Ky.  Statutes,  §  2316. 

Notes. 

No  cases  found. 


KENTUCKY.  I55 

Election  of  Remedies. 

The  vendor  under  conditional  contract  of  sale  may  secure 
a  money  judgment  and  if  unable  to  collect,  can  thereafter  re- 
cover his  property.    Vaughn  &  Others  v.  Hopson,  lo  Bush  337. 


Repossession  and  Refund. 

Where  property  has  been  replevined  under  conditional 
sale  contract  after  default,  vendor  must  make  a  fair  sale  thereof 
upon  notice  to  the  vendee,  and  return  to  such  vendee  the  sur- 
plus after  deducting  the  balance  owing  and  failure  to  so  act 
gives  vendee  an  action  to  recover  the  money  paid  in.  White 
Sewing  Machine  Co.  v,  Connor,  iii  Ky.  827,  64  S.  W.  841; 
Montenegro-Riehm  Music  Co.  v.  Beuris,  160  Ky.  557,  169  S.  W. 
986. 


Railroad  Equipment. 

Railroad  equipment  or  rolling  stock  may  be  sold  under  con- 
ditional contract  or  delivered  upon  lease  with  option  to  pur- 
chase. Such  a  contract  must  be  in  writing  signed  by  the  par- 
ties thereto  and  the  term  thereof  cannot  exceed  twenty-five 
years.  In  order  that  same  shall  be  valid  as  to  subsequent  pur- 
chasers for  value  and  without  notice,  or  against  creditors,  it 
must  be  acknowledged  or  proven  in  the  same  manner  as  a  chat- 
tel mortgage,  and  must  be  recorded  with  the  secretary  of  state. 
When  the  contract  shall  have  been  performed  on  in  full,  the 
vendor  or  his  assignee  shall  release  same,  by  a  written  declaration 
to  that  effect  made  upon  the  margin  of  the  record,  attested  by  the 
secretary  of  state,  or  by  recording  with  said  officer  a  written  in- 
strument of  release  duly  acknowledged  or  proven.  On  each 
locomotive  or  car  so  sold  or  leased  shall  appear  the  name  of  the 
vendor  or  lessor  followed  by  the  word  "owner"  or  "lessor"  as 
the  case  may  be.  Ky.  Statutes,  §§  2496-2499 ;  Barney  &  Smith 
Mfg.  Co.  V.  Hart,  8  Ky.  L.  R.  223,  i  S.  W.  414. 


156  CONDITIONAL  SALES. 

Forms. 

PROOF  BY  SUBSCRIBING  WITNESS. 

Commonwealth  of  Kentucky,  ) 
County  of  Crittenden.  ^ 

Proved  by  the  oath  of  Eaton  De  Forest,  subscribing  wit- 
ness, to  be  the  act  and  deed  of  Edgar  Dennis  and  who  also 
proved  the  attestation  of  Henry  Smith  the  other  subscribing 
witness. 

Eaton  De  Forest, 

Subscribed  and  sworn  to  before  me 
this  1 2th  day  of  July,  1917. 

Martin  Gardner, 

Notary  Public  in  and  for . 

(  notarial  I 
]      seal.      j 


ACKNOWLEDGMENT  BY  AN  INDIVIDUAL. 
Commonwealth  of  Kentucky,  ) 

-  3S.  '. 

County  of  Marshall.  ^ 

I,  Joseph  Harkness,  a  notary  public,  do  certify  that  this 
instrument  of  writing  by  Marcus  Wilkins  was  this  day  pro- 
duced to  me  by  the  parties  and  was  acknowledged  by  the  said 
Marcus  Wilkins  to  be  his  act  and  deed  and  he  consented  that 
the  same  might  be  recorded. 

Given  under  my  hand  and  seal  of  office  this  12th  day  of 
July,  191 7. 

Joseph  Harkness, 

Notary  Public  in  and  for . 

^  notarial   / 
)      seal.       \ 


KENTUCKY.  I57 

ACKNOWLEDGMENT  BY  A  CORPORATION. 

State  of  Kentucky,      ) 

'-  ss. '. 
County  of  Marshall.    ^ 

Personally  appeared  before  me  Wyles  R.  Dunn,  a  notary 
public  in  and  for  the  county  and  state  aforesaid,  Ellis  M. 
Moody,  President  of  The  Metal  Lath  Company,  a  corporation 
duly  organized  and  incorporated  and  existing-  under  and  by 
virtue  of  the  laws  of  the  state  of  Kentucky,  and  James  T.  Met- 
calf,  Secretary  of  said  Corporation,  personally  known  to  me, 
and  personally  known  to  me  to  be  such  officers  and  to  be  the 
same  persons,  who  executed,  as  such  officers  respectively,  the 
within  and  foregoing  instrument  of  writing  and  such  persons 
duly  acknowledged  the  execution  of  the  same  to  be  the  act  and 
deed  of  said  corporation. 

Subscribed  to  in  my  presence  this  12th  day  of  July.  A.  D., 
1917. 

Ellis  M.  Moody. 
James  T.   Metcalf, 


Wyles  R.  Dunn, 
Notary  Public  in  and  for  — 
notarial    I 

SEAL.  ii 


Officers  Before  JVIwm  Acknowledgments  May  Be  Taken. 

Within  the  State.  County  clerks,  deputy  county  clerks,  no- 
taries public.    • 

Without  the  State  but  Within  the  United  States.  Any  secre- 
tary of  state;  commissioners  of  deeds  for  Kentucky;  judges, 
clerks  or  deputy  clerks  of  courts  under  seal  of  court ;  mayors  of 
cities ;  notaries  public. 


158  CONDITIONAL  SALES  (Kentucky), 


LOUISIANA. 


Legal  Status  of  Conditional  Sale  Contracts. 

Conditional  contracts  of  sale  are  provided  for  by  statute 
law  in  this  state,  but  the  benefit  derived  is  of  no  special  value 
to  a  conditional  vendor  for  they  are  held  to  be  absolute  sales, 
and  the  security  afforded  is  denominated  a  vendor's  privilege. 
The  laws  of  this  state,  however,  grant  a  wide  range  to  such 
privileges,  the  object  being  to  insure  the  seller  of  personal  prop- 
erty the  payment  of  the  purchase  price.  Such  privileges,  or 
liens,  however,  expressly  cease  to  be  a  protection  when  the 
property  in  question  shall  have  passed  from  the  original  pur- 
chaser into  the  hands  of  a  bona  fide  purchaser  for  value  and 
without  notice ;  although  the  privilege  affords  protection  as 
against  an  assignment,  bankruptcy,  attachment  or  execution, 
where  properly  enforced.  (See  Chattel  Mortgage  Law).  Mer- 
rick's Code,  §§  202I,  2043-44,  2471,  3184-86,  3227-3229;  Marr's 
Revised  Statutes,  §§  5808-581 1;  Bulkley  &  One  v.  Whited  & 
One,  104  La.  125,  28  So.  922 ;  Adams  Machinery  Co.  v.  New- 
man, 107  La.  702,  32  So.  38;  Forsman  v.  Mace,  iii  La.  28,  35 
So  372 ;  Frantz  Co.  v.  Winehill  Co.  et  al,  124  La.  680,  50  So.  650; 
Frantz  Co.  v.  Fink  &  One,  125  La.  1013,  52  So.  131  ;  Scannell 
&  One  V.  Beauvais,  38  La.  An.  217;  Walburn  etc.  v.  Darrell, 
49  La.  An.  1044,  22  So.  310;  Hall  etc.  v.  Hawley,  etc.,  49  La. 
An.  1046,  22  So.  205 ;  Patterson  v.  Bonner,  19  La.  (Curry)  508; 
National  Bank  of  Commerce  v.  Williams,  etc.,  159  Fed.  615; 
Clyde  Iron  Works  v.  Frerich,  203  Fed.  637. 

How  Executed. 

Conditional  contracts  of  sale  should  be  in  writing,  signed 
by  the  vendee,  but  do  not  need  to  be  signed  by  vendor.    Leases 

159 


l6o  CONDITIONAL  SALES. 

with  option  to  purchase  should  be  in  writing,  signed  by  all 
parties  thereto.  This  state  has  a  peculiar  requirement  in  that 
no  privilege  will  be  allowed  unless  the  contract  shall  have  be- 
come binding  in  Louisiana.  Orders  that  do  not  become  opera- 
tive until  accepted  outside  of  the  state  do  not  carry  privilege. 
There  is  no  direct  decision  upon  this  point  as  regards  leases 
with  option  to  purchase,  but  as  their  effectiveness  is  not 
founded  upon  privilege,  it  is  fair  to  assume  they  may  be  ac- 
cepted anywhere  and  still  be  valid. 

While  the  conditional  sale  contract  in  this  state  is  valid 
merely  as  an  absolute  sale  with  vendor's  privilege,  the  owner 
of  movable  property  may  have  ample  protection  as  against  all 
third  persons,  excepting  a  landlord's  lien  for  rent,  until  the  pur- 
chase money  is  paid  in  full.  Under  such  circumstances  he  may 
deliver  his  property  upon  a  properly  worded  lease,  with  option 
to  purchase.  The  essential  features  of  such  an  agreement  are 
that  the  property  must  be  leased,  for  a  definite  period  at  a 
definite  rental,  to  be  paid  at  definite  times.  There  must  be  a 
provision  that  at  the  end  of  such  rental  period  the  property  in 
question  will  be  returned  to  the  lessor,  thus  completing  all  the 
essential  elements  of  a  lease.  A  feature  which  cannot  be  in- 
corporated in  such  an  instrument  under  any  circumstances,  is 
an  obligation  upon  the  lessee  to  pay  any  stated  sum,  or  to  do 
any  specific  thing,  as  consideration  in  the  nature  of  a  purchase 
price,  and  he  cannot  be  bound  in  the  lease  itself  to  buy  the 
property  and  pay  for  it.  He  can  only  agree  while  the  lease  is  in 
existence  that  he  will  pay  the  rent  as  consideration  for  use  of 
the  property  during  the  rental  term. 

It  can  then  be  further  provided,  by  a  clause  in  the  lease  it- 
self, or  by  a  separate  instrument,  that  the  lessee  for  a  valid  con- 
sideration retains  to  himself  an  option  to  purchase  said  prop- 
erty after  the  lease  terms  have  been  complied  with,  and  to  have 
the  rent  payments  applied  upon  the  purchase  price.  Merrick's 
Code,  §§  1765-66,  2441  and  2676;  Barber  Asphalt  Paving  Co.  v. 
St.  Louis  Cyprus  Co.,  121  La.  152,  46  So.  193;  Witt  Shoe  Co.  v. 
Seegars  Co.,  122  La.  145,  47  So.  444;  Stevens  v.  Older  &  One, 


LOUISIANA.  l6l 

26  La.  An.  634;  Mcllvaine  &  One  v.  Legare  &  One,  36  La.  An. 
359;  Claflin  &  Co.  v.  Mayer,  41  La.  An.  1048,  7  So.  139;  Seelig 
V  Dumas,  48  La.  An.  1494,  21  So.  91 ;  Succession  of  Welsh,  in 
La.  An.  801,  35  So.  913. 

Acknowledgment  or  Proof. 

There  would  seem  to  be  no  provision  of  law  by  which  such 
a  contract  covering  movable  property  may  be  acknowledged  or 
proven,  or  filed  or  recorded  so  as  to  make  it  valid  as  against  all 
third  parties. 

Recording  or  Filing. 

Where  the  conditional  sale  contract  covers  movable  prop- 
erty the  filing  or  recording  of  such  instrument  does  not  seem  to 
be  provided  for,  and  such  action  by  a  vendor  cannot  be  relied 
upon  to  protect  his  interests  as  against  third  parties.  A  lease 
with  option  to  purchase  does  not  need  to  be  filed  or  recorded. 
Kuhn  &  Co.  v.  Embry  &  One,  35  La.  An.  488 ;  Flower  &  One  v. 
Skipworth,  45  La.  An.  895,  13  So.  152. 

Recording  Fee. 

As  no  recording  or  filing  is  provided  for,  no  fee  is  stated. 

Re-Recording  or  Renewal. 

No  proN'ision. 

Discharge. 

No  provision. 

Criminal  Liability  of  Vendee. 

Whosoever  shall  purchase  goods,  wares,  or  merchandise  on 
credit  and  shall  sell,  hypothecate,  pledge,  or  otherwise  dispose 


l62  CONDITIONAL   SALES. 

of  same  out  of  the  usual  course  of  business,  and  with  intent  to 
cheat  and  defraud  the  seller,  or  vendor,  shall  be  guilty  of  a  mis- 
demeanor, and  on  conviction  thereof  shall  suffer  fine  in  the  dis- 
cretion of  the  court,  and  imprisonment  not  less  than  six  or 
more  than  twelve  months.  Where  the  purchase  is  made  for 
cash  and  vendee  disposes  of  the  property  and  does  not  pay  the 
vendor,  he  shall  be  punished  by  fine  not  exceeding  $5,000  or  by 
imprisonment  not  exceeding  five  years,  or  both.  Marr's  Re- 
vised Statutes,  §§  1756,  1758. 

Loss,  Who  Must  Bear. 

Where  property  held  under  conditional  sale  contract  is  in- 
jured or  destroyed  while  in  possession  of  vendee,  he  may  elect 
to  return  same,  or  may  keep  and  pay  for  it  less  the  damages. 
An  express  contract  placing  the  loss  upon  vendee  would  un- 
doubtedly be  enforced.    Merrick's  Code,  §§  2044,  2471. 

Fixtures. 

The  law  in  this  state  apparently  is  that  personal  property 
sold  on  contract,  or  delivered  under  lease  with  option  to  pur- 
chase, does  not  become  a  fixture  upon  real  estate,  unless  the 
annexation  can  be  said  to  be  irremovable,  and  even  under  such 
circumstances  the  vendor's  privilege  may  be  enforced.  Lapene 
&  One  V.  McCan  &  Son,  28  La.  An.  749 ;  Penn.  v.  Citizens  Bank 
of  La.,  32  La.  An.  195 ;  Carlin  v.  Gordy,  32  La.  An.  1285  ;  Bald- 
win V.  Young  et  al,  47  La.  An.  1466,  17  So.  883 ;  Swoop  v.  St. 
Martin,  no  La.  237,  34  So.  426;  Hibernia  etc.  v.  Knoll,  etc., 
133  La.  242,  62  So.  663;  Same  Case,  133  La.  697,  63  So.  288; 
In  re:  Augusta  Sugar  Co.,  134  La.  971,  64  So.  870;  Pratt  En- 
gineering Co.  etc.  V.  Cecelia  Sugar  Co.,  135  La.  179,  65  So.  100. 

Landlord's  Lien. 

The  laws  of  this  state  give  a  landlord  the  right  to  hold  per- 
sonal property  found  on  his  premises  as    security    for    rent. 


LOUISIANA.  163 

Where  the  property  in  question  is  a  musical  instrument  hired 
for  rent  the  lien  does  not  apply.  Merrick's  Code,  §§  2705,  3218, 
Marr's  Revised  Statutes,  §  4124. 


Notes. 

A  note  may  embody  the  conditional  sale  agreement  and  if 
transferred  by  assignment  in  writing  will  carry  title  and  ven- 
dor's privilege.  National  Bank  of  Commerce  v.  Williams,  etc., 
159  Fed.  615. 


Election  of  Remedies. 
No  cases  found. 

Repossession  and  Refund. 

Many  articles  of  personal  property  are  exempt  from  seiz- 
ure under  the  general  law,  where  the  sale  is  absolute  or  con- 
ditional. 

These  are  chiefly  household  necessaries  (sewing  machines 
and  pianos  excepted).  A  lease  with  option  to  purchase  cover- 
ing articles  which  are  exempt  from  seizure  under  general  law 
is  expressly  declared  to  carry  a  vendor's  privilege  for  its 
amount.  Repossessing  such  articles  without  due  process  of 
law  is  a  misdemeanor. 

Under  sales  or  leases  covering  ordinary  personal  property 
not  exempt  from  general  seizure,  an  agreement  may  be  made 
for  return,  but  it  is  never  safe  to  seize  such  property  by  trick 
or  force,  for  the  laws  of  this  state  would  undoubtedly  award 
the  vendee  or  lessee  heavy  damages  under  such  circumstances. 
Where  there  is  a  dispute  action  for  possession  should  always 
be  resorted  to.  Marr's  Revised  Statutes,  §§  1132,  5808-581 1; 
Van  Wren  v.  Flynn,  34  La.  An.  11 58;  Jenks  v.  Home  Sewing 
Machine  Co.,  34  La.  An.  1241. 


164  CONDITIONAL  SALES. 

Railroad  Equipment. 

Contracts  for  the  conditional  sale,  or  leasing  with  option 
to  purchase,  of  railroad  or  street  railway  equipment  or  rolling 
stock,  are  legal  between  the  parties  thereto,  but  in  order  that 
same  shall  be  valid  as  against  any  subsequent  judgment  cred- 
itor, or  bona  fide  purchaser  for  value  without  notice,  same 
must  be  signed  by  all  parties  thereto,  and  be  duly  acknowledged 
by  the  vendee,  lessee,  or  bailee,  as  the  case  may  be,  or  be  duly 
proven  before  some  person  authorized  by  law  to  take  acknowl- 
edgments of  deeds,  and  in  the  same  manner  as  deeds  are  ac- 
knowledged or  proved. 

Where  such  lessee,  vendee,  or  bailee  is  a  railroad  or  rail- 
way company,  whose  line  is  situated  in  more  than  one  parish, 
then  the  original  contract  must  be  filed  for  record  with  the  re- 
corder of  the  parish  of  East  Baton  Rouge.  Where  such  ven- 
dee, lessee  or  bailee  has  a  line  in  only  one  parish,  then  the  con- 
tract must  be  filed  for  record-  with  the  recorder  of  the  parish 
where  such  line  is  situated.  Each  locomotive,  engine  or  car  so 
sold,  leased  or  hired,  or  contracted  to  be  so  sold,  leased  or  hired, 
shall  have  the  name  of  the  vendor,  lessor  or  bailor,  plainly 
marked  on  each  side  thereof,  followed  by  the  word  "owner," 
"lessor"  or  "bailor"  as  the  case  may  be.  In  case  of  default  and 
retaking  all  payments  shall  be  forfeited.  \\^here  payment  in 
full  shall  have  been  received  the  record  may  be  discharged  by 
a  declaration  to  that  effect  duly  attested,  made  in  the  margin  of 
the  record  by  the  vendor,  lessor  or  bailor,  or  his  or  its  assignee, 
or  by  separate  instrument  duly  acknowledged  by  the  vendor, 
lessor,  bailor  or  his  or  its  assignee  and  duly  recorded.  Marr's 
Revised  Statutes,  §§  6626  6629. 


Chattel  Mortgage  Law. 

The  chattel  mortgage  laws  of  the  several  states  are  not 
covered  by  "Haring's  Book  on  Conditional  Sales."  In  certain 
instances,  however,  when  conditional  sale  contracts  are  not 
recognized  by  law,  where  the  interests  of  third  parties  inter- 


LOUISIANA.  165 

vene,  it  seems  proper  to  advise  of  the  chattel  mortgage  laws. 
In  Louisiana  the  use  of  a  lease  with  option  to  purchase  is  rec- 
ommended, but  where  the  property  in  question  is  of  the  type 
mentioned  hereafter,  then  a  chattel  mortgage  will  be  proper 
security.  It  shall  be  lawful  to  mortgage  and  hypothecate  lum- 
ber, logs,  live  stock  and  vehicles  of  all  kinds,  all  kinds  of  ma- 
chinery, oil  well  casing,  line  pipes,  drilling  rigs  and  tanks,  for 
debts  or  money  loaned  or  to  secure  future  advances  by  comply- 
ing with  the  provisions  of  this  Act,  Marr's  Revised  Statutes, 
§  4714- 

Such  mortgage  of  property  mentioned  in  the  above  sec- 
tion shall  be  in  writing  setting  out  a  full  description  of  said 
property  to  be  mortgaged  so  that  the  same  may  be  identified, 
and  also  stating  definitely  the  time  when  the  obligation  shall 
mature,  signed  by  both  parties,  their  lawful  agents  or  attorneys, 
in  the  presence  of  two  witnesses,  and  to  affect  third  persons 
without  notice,  said  instrument  must  be  passed  by  notarial  act, 
and  deposited  forthwith  in  the  office  of  the  recorder  of  mort- 
gages in  the  parish  where  the  property  shall  be  then  situated, 
and  also  in  the  parish  in  which  the  mortgagor  is  a  resident. 
Marr's  Revised  Statutes,  §  4715. 

Upon  receipt  of  such  instrument  the  recorder  shall  endorse 
on  the  back  thereof,  its  number,  also  the  date,  hour  and  minute 
of  receiving  same,  and  shall  record  it  in  his  office  to  be  kept 
there  for  the  inspection  of  all  persons  interested,  and  for  which 
he  shall  receive  fifty  cents.    Marr's  Revised  Statutes,  §  4716. 

Every  mortgage  shall  be  a  lien  on  the  mortgaged  property 
from  the  time  the  same  is  recorded,  which  recordation  shall  be 
notice  to  all  persons  of  the  existence  of  such  mortgage,  and 
said  lien  shall  be  superior  in  rank  to  any  privilege  or  lien  aris- 
ing sulisequently  thereto.     Marr's  Revised  Statutes,  §  4717. 

The  mortgagor  shall  not  move  said  property  from  the  par- 
ish where  said  mortgage  is  given,  without  the  written  consent 
of  the  mortgagee,  designating  the  parish  or  parishes  to  which 
same  shall  be  taken  and  to  preserve  said  mortgage  against  third 


l66  CONDITIONAL  SALES. 

persons  in  such  cases,  it  shall  be  the  duty  of  the  mortgagee  to 
have  a  copy  thereof  recorded  in  the  parish  or  parishes  to  which 
such  removal  is  permitted.    Marr's  Revised  Statutes,  §  4718. 

For  the  purposes  of  this  Act,  it  shall  be  sufficient  for  the 
recorder  to  keep  a  book  to  be  known  as  the  Chattel  Mortgage 
Book,  which  shall  be  ruled  off  in  columns  with  headings  as  fol- 
lows:  "Time  of  reception,"  "Name  of  mortgagor,"  "Name  of 
mortgagee,"  "Date  of  instrument,"  "Amount  secured,"  "When 
due,"  "Property  mortgaged,"  "Remarks."  Under  the  head  of 
"Property  mortgaged"  it  shall  be  sufficient  to  enter  a  general 
description  of  the  property  and  the  particular  place  where  lo- 
cated. An  index  to  said  book  shall  be  kept  in  the  manner  as 
required  for  other  records.    Marr's  Revised  Statutes,  §  4719 

When  any  mortgage  under  this  Act  shall  have  been  fully 
paid  off  or  satisfied,  it  shall  be  the  duty  of  the  mortgagee  or 
beneficiary,  his  assignee  or  personal  representative  to  enter 
satisfaction,  or  cause  satisfaction  thereof  to  be  entered  of  rec- 
ord, under  the  head  of  "Remarks"  and  said  recorder  shall  re- 
ceive for  the  same  the  sum  of  25c.  Marr's  Revised  Statutes, 
§  4720. 

Any  owner  or  other  person  who  shall  sell  or  dispose  of 
mortgaged  property  under  this  Act  with  fraudulent  intent  to 
defeat  said  mortgage,  or  shall  remove  same  from  where  so 
mortgaged  to  another  parish  without  complying  with  the  pro- 
visions of  this  act,  or  shall  remove  same  out  of  said  parish 
without  the  written  consent  of  said  mortgagee,  shall  be  deemed 
guilty  of  a  misdemeanor  and  on  conviction  shall  be  fined  in  a 
sum  not  exceeding  $500  or  be  imprisoned  not  exceeding  12 
months  or  both  at  the  discretion  of  the  court.  If  any  mortga- 
gor of  movable  property  or  any  other  who  shall  injure,  destroy, 
or  conceal  any  mortgaged  property,  or  part  thereof,  with  intent 
to  defraud  the  mortgagee,  his  executor,  administrator,  personal 
representative  or  assigns,  he  shall  be  deemed  guilty  of  a  viola- 
tion of  this  Act  and  upon  conviction  thereof  be  punished  in  the 
manner  above  provided.    If  any  mortgagee  named  in  a  chattel 


LOUISIANA.  167 

mortgage,  not  being  at  the  time  the  owner  and  holder  of  the 
debt  secured,  shall  execute  a  release  or  satisfaction  of  said  chat- 
tel mortgage,  he  shall  be  deemed  guilty  of  a  violation  of  this 
Act  and  upon  conviction  he  shall  be  punished  as  above  pro- 
vided.   Marr's  Revised  Statutes,  §  4721. 


l68  CONDITIONAL   SALES    (LOUISIANA). 


MAINE. 


Legal  Status  of  Conditional  Sale  Contracts. 

Conditional  contracts  of  sale  are  provided  for  by  statute 
law  in  this  state.  Revised  Statutes  1903,  Chap.  113,  §  5,  as 
amended  by  Laws  of  1913,  Chap.  171  ;  Brown  v.  Haynes,  52  Me. 
578;  Allen  V.  Delano,  55  Me.  113;  Small  v.  Robinson,  69  Me. 
425 ;  Rogers  v.  Whitehouse,  71  Me.  222 ;  Hawkins  et  al  v. 
Hersey,  86  Me.  394,  30  Atl.  14;  Thomas  v.  Parsons  &  Others, 
87  Me.  203,  32  Atl.  876 ;  White  v.  Oakes  &  One,  88  Me.  367,  34 
Atl.  175 ;  Robinson  v.  Berry,  93  Me.  320,  45  Atl.  34;  Richardson 
Mfg.  Co.  V.  Brooks,  95  Me.  146;  49  Atl.  672. 

How  Executed. 

They  must  be  in  writing  signed  by  the  vendee,  but  do  not 
need  to  be  signed  by  the  vendor,  the  acceptance  of  such  a  con- 
tract on  the  part  of  the  vendor  by  acting  upon  it  or  shipping  the 
goods  being  sufficient  to  make  a  binding  contract  as  between 
the  parties  thereto.  Bryant  v.  Crosby,  36  Me.  562;  Crocker  v. 
Gullifer  et  al.,  44  Me.  491  ;  Wright  v.  Fickett,  107  Me.  448,  78 
Atl.  576;  Pendleton  v.  Poland,  in  Me.  563.  90  Atl.  126;  Guth 
Piano  Co.  v.  Adams  et  al.,  114  Me.  390;  96  Atl.  722. 

Acknowledgment  or  Proof. 

Such  a  contract  is  valid  as  between  the  parties  thereto 
without  acknowledgment  or  proof,  or  recording  or  filing,  but 
in  order  to  make  it  valid  and  to  hold  title  as  against  third  par- 
ties the  contract  must  be  recorded.  It  is  not  necessary  that  the 
instrument  be  acknowledged  by  the  vendee  or  vendor,  nor  that 

169 


170  CONDITIONAL  SALES. 

it  be  signed  or  proven  by  a  subscribing  witness  in  order  to  be 
recorded.  Revised  Statutes  1903,  Chap.  113,  §  5,  as  amended  by 
Laws  of  1913,  Chap.  171. 


Recording  or  Filing. 

The  original  contract  duly  signed  by  the  vendee  must  be 
recorded.  There  is  no  provision  for  filing.  There  is  no  ex- 
press requirement  as  to  the  time  within  which  the  contract 
must  be  recorded.  It  should,  however,  be  recorded  if  possible 
before  the  vendee  secures  possession  of  the  property.  The 
proper  recording  officer  is  the  clerk  of  the  city,  town  or  planta- 
tion, organized  for  any  purpose,  in  which  the  purchaser  resides 
at  the  time  of  the  purchase ;  but  if  any  of  the  purchasers  are  not 
residents  of  the  state,  or  reside  in  an  unorganized  place  in  the 
state,  then  in  the  office  of  the  register  of  deeds,  in  the  county 
where  the  seller  resides  at  the  time  of  the  sale.  Revised  Statutes 
1903,  Chap.  113,  §  5,  as  amended  by  Laws  of  1913,  Chap.  171 ; 
Waterston  v.  Getchell,  5  Me.  435  (side  paging)  ;  Rogers  v. 
Whitehouse,  71  Me.  222;  Rowell  v.  Lewis,  95  Me.  83,  49  Atl. 
423 ;  Emerson  Co.  v.  Proctor,  97  Me.  360,  54  Atl.  849. 


Recording  Fee. 

Fee  to  the  recording  officer  is  twenty-five  cents  where  the 
instrument  does  not  exceed  two  hundred  and  fifty  words,  or 
fifty  cents  where  the  number  of  words  does  exceed  two  hun- 
dred and  fifty  but  is  not  more  than  five  hundred,  and  fifteen 
cents  for  each  additional  one  hundred  words  or  part  thereof 
over  five  hundred.    Revised  Statutes,  1903,  Chap.  117,  §  20. 


Re-Recording  or  Renewal. 

The  contract  is  valid  for  the  term  of  six  years.     There  is 
no  provision  for  re-recording  or  renewal. 


MAINE.  171 

Discharge. 

There  is  no  provision  for  discharge  of  such  a  contract 
after  payment.  It  is  always  advisable,  however,  to  execute  and 
deliver  a  written  discharge  after  payment  upon  request  of  ven- 
dee or  other  interested  party. 

Criminal  Liability  of  Vendee. 

Whoever  knowingly  and  with  intent  to  defraud,  sells,  con- 
veys, mortgages  or  pledges  to  another,  personal  property  on 
which  there  is  an  existing  mortgage,  or  to  which  he  has  no 
title,  without  notice  to  the  purchaser  of  the  existence  of  such 
mortgage  or  such  lack  of  title,  is  guilty  of  cheating  by  false 
pretenses,  and  upon  conviction  shall  be  punished  by  imprison- 
ment for  not  more  than  seven  years,  or  by  a  fine  not  exceeding 
$500.00.      Revised  Statutes,  1903,  Chap.  127,  §  i. 

Loss,  Who  Must  Bear. 

No  cases  found. 

Fixtures. 

There  has  been  no  general  determination  by  the  courts  as 
to  the  effect  of  attaching  to  a  building  property  delivered  un- 
der conditional  sale  contract,  but  it  seems  safe  to  say  that  where 
the  contract  has  been  duly  recorded  before  the  property  be- 
comes so  attached,  it  could  either  be  taken  possession  of,  or  a 
lien  be  enforced  against  the  building  for  the  unpaid  balance. 
Hawkins  et  al  v.  Hersey,  86  Me.  394. 

Landlord's  Lien. 

There  seems  to  be  no  express  provision  giving  a  landlord 
a  lien  for  rent  on  property  found  on  his  premises.  He  certainly 
would  have  no  lien  where  the  contract  was  duly  recorded  be- 


172  CONDITIONAL  SALES. 

fore  such  property  was  delivered    to     the     vendee.       Revised 
Statutes,  1903,  Chap.  93,  §§  44-45. 

Notes. 

Where  notes  have  been  given  under  conditional  sale  con- 
tract, and  said  contract  expressly  provides  that  title  to  the  prop- 
erty covered  shall  not  pass  until  "paid  for  in  money,"  these 
notes  will  not  be  deemed  payment  until  the  money  shall  have 
been  actually  so  remitted.  \\'here  the  contract  contains  no  such 
provision  the  notes  are  presumed  to  be  payment.  Anderson 
Carriage  Co.  v.  Bartley,  102  Me.  492,  67  Atl.  567. 

Election  of  Remedies. 

In  the  State  of  Maine,  under  Revised  Statutes  of  1903, 
Chapter  113,  §  5,  there  exists  the  right  to  sue  for  the  purchase 
price  and  the  right  to  foreclose  as  concurrent  or  successive 
remedies.  W'estinghouse  Electric  Mfg.  Co.  v.  Auburn  &  T.  R. 
Co.,  106  Me.  349,  76  Atl.  897. 

Repossession  and  Refund. 

All  such  property  whether  said  agreements  are  recorded  or 
not  shall  be  subject  to  redemption,  and  to  trustee  process,  but 
the  title  may  be  foreclosed  in  the  same  manner  provided  for 
mortgages  of  personal  property  Revised  Statutes  1903,  Chap. 
93,  §§  3,  5,  6 ;  Chap.  1 13.  §  5  :  Chap.  88,  §  50. 

Railroad  Equipment, 

Where  railroad  equipment  or  rolling  stock  is  sold  under 
conditional  contract  of  sale  or  is  rented  with  option  to  purchase, 
such  contract  must  be  signed  by  all  parties  thereto  and  be  ac- 
knowledged by  the  vendee,  lessee,  or  bailee  as  the  case  may  be; 
after  which  in  order  to  retain  title  as  against  subsequent  judg- 
ment creditors  or  subsequent  bona  fide  purchasers  for  value 


MAINE.  173 

and  without  notice,  the  original  must  be  recorded  in  the  office  of 
the  secretary  of  state.  Each  locomotive,  engine  or  car  so  sold, 
leased  or  hired,  shall  have  marked  on  each  side  thereof  the  word 
"owner."  or  "lessor"  or  "bailor,"  as  the  case  may  be.  Upon 
payment  or  performance  in  full,  the  contract  may  be  discharged 
by  a  declaration  in  writing  to  that  efifect  upon  the  margin  of  the 
record,  made  by  the  vendor,  lessor  or  bailor,  or  his  or  its  as- 
signee duly  attested,  or  it  may  be  made  by  a  separate  instru- 
ment to  be  acknowledged  by  the  vendor,  lessor  or  bailor,  or  his 
or  its  assignee  and  recorded  with  the  secretary  of  state. 

Fees  to  the  secretary  of  state  shall  be  for  recording  the 
contract,  or  written  declaration  of  satisfaction  thereof  five 
dollars. 

For  noting  satisfaction  on  the  margin  of  the  record  one 
dollar.  Revised  Statutes  1903,  Chap.  52,  §§  95-97;  Chap.  117, 
§17- 


174  CONDITIONAL    SALES     (mAINe). 


MARYLAND. 


Legal  Status  of  Conditional  Sale  Contracts. 

Conditional  contracts  of  sale  are  provided  for  by  statute 
law  in  this  state.    Laws  of  Maryland  1916,  Chap.  355. 

(This  statute  is  so  recent  that  no  decisions  have  been  made 
construing  it,  and  most  prior  decisions  are  no  longer  in  force, 
for  which  reasons  few  citations  can  be  given).  Dias  v.  Chicker- 
ing,  64  Md.  348,  I  Atl.  709;  In  re:  Handy,  218  Fed.  956. 

How  Executed. 

The  contract  must  be  in  writing  signed  by  the  vendee,  but 
does  not  need  to  be  signed  by  the  vendor,  the  acceptance  of 
such  a  contract  on  the  part  of  the  vendor  by  acting  upon  it,  or 
shipping  the  goods,  being  sufficient  to  make  a  binding  contract 
as  between  the  parties  thereto.  There  is,  however,  no  objec- 
tion to  the  contract  being  formally  signed  and  accepted  by  the 
vendor. 


Acknowledgment  or  Proof. 

Such  a  contract  is  valid  as  between  the  parties  thereto, 
without  any  formality  in  the  way  of  acknowledgment  or  proof, 
or  filing  or  recording,  and  as  to  all  third  parties  having  notice, 
with  the  exception  of  a  landlord's  lien  for  rent.  In  order  that  it 
shall  be  valid  and  hold  title  as  against  such  third  persons  with- 
out notice,  it  is  necessary  that  the  contract,  or  a  memorandum 
thereof  be  recorded.  It  would  seem  that  a  true  copy  of  such 
contract  may  be  sent,  but  it  is  advised  that  a  memorandum  be 
used,  thus  reducing  the  fees  to  a  minimum.     No  subscribing 

175 


1/6  CONDITIONAL  SALES. 

witness  to  or  acknowledgment  or  proof  of  the  contract  is  re- 
quired, and  the  memorandum  must  be  in  substantially  the  fol- 
lowing form : 


MEMORANDUM  OF  CONDITIONAL  SALE  CONTRACT 

Notice  is  hereby  given :    That 

of and   

of did  on make  a 

contract  covering  the  following  described  property,  to  wit: 

(Describe  Property). 

whereby  possession  thereof  is  to  be  delivered  to 

and  title  thereto  is  to  remain  in   

until  paid  for  in  full.    The  amount  of 

said  contract  is  $ upon  which  remains  unpaid  and  due 

thereon  $ ,  to  be  paid  as  follows 


(Vendor). 

Dated  at 

this day  of ,  191 .... 

It  is  not  necessary  to  make  an  affidavit  as  to  the  considera- 
tion expressed  in  the  contract.     Laws  of  1916,  Chap.  355. 

Recording  or  Filing. 

There  is  no  provision  for  filing.  The  original  contract  or 
a  true  copy  thereof,  or  a  memorandum  as  heretofore  stated, 
must  be  recorded.  The  proper  recording  officer  is  the  circuit 
court  clerk  in  the  county  where  the  property  is  situated,  or  if 


MARYLAND.  1 77 

in  the  city  of  Baltimore  it  must  be  recorded  in  the  city  clerk's 
office.  No  definite  time  is  stated  within  which  such  record 
shall  be  made,  but  it  should  be  before  vendee  gets  possession 
if  possible.  Laws  of  Maryland  1916,  Chap.  355 ;  Public  General 
Laws,  Art.  21,  §45. 

Recording  Fee. 

Fees  to  a  recording  officer  are,  ten  cents  for  receiving  the 
paper,  fifteen  cents  for  indexing  and  one  cent  for  recording  each 
ten  words.  Where  an  acknowledgment  is  required  that  the 
paper  has  been  recorded  the  fee  is  usually  ten  cents,  but  many 
officers  seek  to  charge  tw^enty-five  cents.  Public  General  Laws, 
Art  17,  §  55,  Art.  36,  §  12;  Peter  v.  Prettyman,  62  Md.  566. 


Re-Recording  or  Renewal. 

There  is  no  provision  for  re-recording  or  renewal  and  the 
contract  is  valid  for  the  term  of  three  years. 


Discharge. 

There  is  no  express  provision  for  discharging  such  a  con- 
tract after  payment. 

Criminal  Liability  of  Vendee. 

It  is  a  crime  to  dispose  etc..  of  property  held  under  unre- 
corded conditional  contract  of  sale,  punishable  by  imprison- 
ment in  jail  for  not  more  than  six  months,  or  by  fine  of  not 
more  than  $500.00,  or  by  both.  Public  General  Laws,  Art.  2J, 
§  166. 

Loss,  Who  Must  Bear. 
No  cases  found. 


178  CONDITIONAL  SALES. 

Fixtures. 

It  is  a  well  settled  rule  in  this  state  that  a  vendor  of  prop- 
erty under  conditional  sale  contract  may  recover  possession 
upon  non-payment  even  though  the  property  be  affixed  to  the 
building  with  a  great  degree  of  firmness  and  permanency. 
Walker  v.  Schindel,  58  Md.  360;  Central  Trust  Co.  v.  Arctic 
Ice  Machine  Mfg.  Co.,  yj  Md.  202,  26  Atl.  493. 

Landlord's  Lien. 

The  laws  of  this  state  permit  a  landlord  to  levy  distress  for 
rent  of  his  premises  upon  all  personal  property,  not  expressly 
exempt,  found  thereon,  or  which  has  been  removed  therefrom 
within  60  days  prior  or  subsequent  to  the  time  when  the  rent 
has,  or  will  become  due.  A  bona  fide  purchaser  at  a  sale  on 
execution  takes  precedence  over  such  distress.  The  exempt 
property  consists  of  spinning  wheel,  loom,  sewing  machine, 
typewriter,  stove,  piano,  organ  or  other  musical  instrument 
rented,  hired  or  loaned  to  the  tenant,  and  every  horse,  carriage 
and  harness,  whip  and  robe,  saddle  and  bridle  not  the  property 
of  the  tenant,  in  any  livery  stable,  or  which  may  be  stored  with 
any  keeper  of  any  livery  stable,  or  in  any  other  place,  outhouse 
or  barn  of  the  tenant ;  and  all  property  of  any  boarder  or  so- 
journer at  any  hotel,  tavern,  public  or  private  boarding  house, 
and  any  vehicle  not  the  property  of  the  tenant  in  any  shop  for 
repairs. 

A  conditional  sale  contract  properly  recorded  before  the 
property  covered  thereby  is  moved  upon  a  landlord's  premises, 
would  undoubtedly  be  a  protection.  A  waiver  executed  by  a 
landlord  for  a  valid  consideration  would  also  prevent  the  en- 
forcement of  a  lien.  Public  General  Laws,  Art.  53,  §§  8-20; 
Giles  V.  Ebsworth  &  One,  10  Md.  333 ;  Leitch  v.  Owings,  34 
Md.  262;  McCreery  v.  Clafiflin  et  al,  37  Md.  435;  Kennedy  & 
One  V.  Lange,  50  Md.  91 ;  Butler  v.  Gannon  &  One,  53  Md. 
333 ;  Swartz  v.  G.  B.  S.  Brewing  Co.,  109  Md.  393,  71  Atl.  854; 
McElderry  v.  Flannagan,  i  H.  &  G.  308;  RatcliflF  v.  Daniel,  6 


MARYLAND.  1 79 

H.  &  J.  498 ;  Cromwell  et  al  v.  Owings,  7  H.  &  J.  55 ;  Howard 
V.  Ramsay,  7  H.  &  J.  113 ;  Neal  v.  Clautice,  7  H.  &  J.  372. 

Notes. 

No  cases  found. 

Election  of  Remedies. 

No  cases  found. 

Repossession  and  Refund. 

No  cases  found. 

Railroad  Equipment. 

Railroad  equipment  may  be  sold  under  conditional  sale 
contract,  or  lease  with  option  to  purchase,  but  in  order  to  be 
valid  as  against  third  parties  the  contract  must  be  in  writing, 
must  be  for  a  term  not  exceeding  twenty  years,  and  must  be 
acknowledged  and  recorded  in  the  same  manner  as  a  deed  of 
real  estate,  in  the  office  of  the  clerk  of  the  circuit  court  for  the 
county  where  the  vendee  or  lessee  has  its  principal  office  within 
the  state.  Public  Gen.  Laws,  Art.  21,  §  87,  as  amended  by  Art. 
21,  Chap.  438  Laws  of  1910. 


l80  CONDITIONAL  SALES   (MARYLAND). 


MASSACHUSETTS. 


Legal  Status  of  Conditional  Sale  Contracts. 

Conditional  contracts  of  sale  are  regulated  by  statute  law, 
where  the  property  involved  becomes  thereafter  wrought  into 
or  attached  to  real  estate  in  such  a  manner  as  to  become  a  fix- 
ture. Especially  is  this  true  concerning  heating  apparatus, 
plumbing  goods,  and  ranges.  There  are  special  rules  as  well 
governing  the  sale  in  this  way  of  furniture  and  household 
effects.     (See  Household  Furniture). 

As  to  ordinary  personal  property  the  common  law  rule 
prevails  and  same  are  valid  as  to  all  third  persons.  Revised 
Laws,  Chap.  198,  §§  11-13;  Laws  of  1912,  Chap.  271;  Hill  v. 
Freeman,  3  Cush.  257 ;  Tyler  v.  Freeman,  3  Cush.  261 ;  Heath 
V.  Randall,  4  Cush.  195  ;  Coggill  &  One  v.  Hartford  etc.  R.  R. 
Co.,  3  Gray  545;  Gilbert  v.  Thompson,  3  Gray  550;  Sargent  et 
al  V.  Metcalf,  5  Gray  306;  Blanchard  v.  Child,  7  Gray  155; 
Burbank  v.  Crocker  &  One,  7  Gray  158;  Deshon  v.  Bigelow,  et 
al.,  8  Gray  159;  Farlow  v.  Ellis  &  One,  15  Gray  229;  Hussey  v. 
Thornton,  4  Mass.  404;  Marston  v.  Baldwin,  17  Mass.  605; 
Hirschorn  v.  Canney,  98  Mass.  149;  Day  v.  Bassett,  102  Mass. 
445;  Carter  v.  Kingman,  103  Mass.  517;  Gilson  v.  Gwinn,  107 
Mass.  126;  Benner  v.  Puffer,  114  Mass.  376;  Harrington  v. 
King,  121  Mass.  269;  Chase  v.  Ingalls,  122  Mass.  381;  Chase 
V.  Pike,  125  Mass.  117;  Newhall  &  One  v.  Kingsbury,  131  Mass. 
445;  Blanchard  v.  Cooke,  144  Mass.  207,  11  N.  E.  83 ;  Spooner 
V.  Cummings,  151  Mass.  313,  23  N.  E.  839;  Nichols  v.  Ashton, 
155  Mass.  205,  29  N.  E.  519;  Robinson  v.  Besarick,  156  Mass. 
141,  30  N.  E.  553;  Robinson  v.  Bird,  158  Mass.  357,  33  N.  E. 
391  ;  \\'hite  v.  vSolomon,  164  Mass.  516,  42  N.  E.  104;  Aldrich  & 


I8i 


l82  CONDITIONAL  SALES. 

One  V.  Hodges,  164  Mass.  570,  42  N.  E.  107;  Cottrell  &  Sons 
Co.  V.  Carter  Rice  &  Co.,  173  Mass.  155,  53  N.  E.  375;  Harding 
V.  Lewenberg,  174  Mass.  394,  54  N.  E.  870;  Tabbut  v.  American 
Insurance  Co.,  185  Mass.  419,  70  N.  E.  430;  Pels  &  Co.  v.  Mil- 
len  &  One,  192  Mass.  13,  yj  N.  E.  11 52;  Dame  v.  Hanson  &  Co., 
212  Mass.  124,  98  N.  E.  589;  Bay  State  Paper  Co.  v.  Duggan, 
214  Mass.  166,  100  N.  E.  1083;  Brown  v.  Sallinger,  214  Mass. 
245,  loi  N.  E.  382;  Sallinger  v.  Collateral  Co.,  215  Mass.  266, 
102  N.  E.  365 ;  Federal  Trust  Co.  v.  Bristol  Co.  St.  Ry.,  222 
Mass.  35,  109  N.  E.  880;  In  re:  Harrington,  212  Fed.  542. 

How  Executed. 

As  to  ordinary  personal  property,  they  should  be  in  writ- 
ing signed  by  the  vendee,  but  do  not  need  to  be  signed  by  the 
vendor,  the  acceptance  of  a  contract  on  the  part  of  the  vendor 
by  acting  upon  it  or  shipping  the  goods  being  sufficient  to  make 
a  binding  agreement  as  between  the  parties  thereto.  There  is, 
however,  no  objection  to  the  contract  being  formally  signed 
and  accepted  by  the  vendor.  Where  the  property  is  to  become 
attached  to  real  estate  all  parties  should  sign.  Smith  &  One  v. 
Aldrich,  180  Mass.  367,  62  N.  E.  381. 

Acknowledgment  or  Proof. 

There  is  no  provision  for  acknowledgment  of  such  an  in- 
strument by  the  vendor  or  vendee,  nor  for  signing  or  proof  by 
a  subscribing  witness. 

Recording  or  Filing. 

Where  the  contract  covers  ordinary  personal  property 
which  does  not  thereafter  become  wrought  into,  or  attached 
upon  real  estate  in  such  a  manner  as  to  make  it  a  fixture ;  then 
no  recording  or  filing  is  necessary.  This  is  also  true  as  to 
household  furniture.  In  case  the  property,  and  especially  heat- 
ing apparatus,  plumbing  goods  and   ranges,  does  become  so 


MASSACHUSETTS.  183 

wrought  into  or  attached  upon  real  estate  as  to  make  it  a  fix- 
ture, the  contract  shall  be  void  as  against  any  mortgagee,  pur- 
chaser, or  grantee  of  said  real  estate  unless  within  ten  days 
after  the  making  of  the  contract  of  conditional  sale,  same  or  a 
memorandum  thereof  signed  by  all  parties,  is  recorded  in  the 
clerk's  office  of  the  city  or  town  in  which  the  real  estate  is  situ- 
ated. Revised  Laws,  Chap.  198,  §§  11-13;  Laws  of  1912,  Chap. 
271. 


Recording  Fee. 

The  laws  of  Massachusetts  do  not  fix  a  definite  fee  for  re- 
cording conditional  sale  contracts.  The  best  determination 
which  can  be  reached  from  the  laws  pertaining  to  fees  of  city 
clerks  or  town  clerks  leads  to  the  conclusion  that  the  fees 
should  be  twenty-five  cents  for  recording  the  first  224  words, 
and  twenty  cents  for  recording  each  additional  224  words.  Re- 
vised Laws,  Page  383,  Chap.  25,  §  95 ;  Revised  Laws,  Page 
1707,  Chap.  198,  §  3;  Revised  Laws,  Page  1734,  Chap.  204,  § 
29,  Amended  by  Act  of  1908,  Chap.  365 ;  Revised  Laws,  Page 
1736,  Chap.  204,  §  35. 

Re-Recording  or  Renewal. 

No  provision. 

Discharge. 

No  provision. 

Criminal  Liability  of  Vendee. 

A  vendee  or  lessee  of  personal  property  who  shall  sell, 
convey  or  conceal  same,  before  payment  in  full,  is  punishable 
upon  conviction  by  a  fine  of  not  more  than  $100.00,  or  by  im- 
prisonment for  not  more  than  one  year.  Revised  Laws,  Page 
1759,  Chap.  208,  §§  70,  -Ji. 


184  CONDITIONAL  SALES. 

Loss,  Who  Must  Bear. 

The  destruction  of  property  in  possession  of  vendee  under 
conditional  sale  contract  relieves  him  from  further  payment  if 
same  occurs  v^^ithout  his  fault.  The  liability  might  undoubtedly 
be  shifted  by  an  appropriately  worded  clause  in  the  contract. 
Weed  V.  Boston  &  Salem  Ice  Co.,  12  Allen  377;  Wells  v.  Cal- 
nan,  107  Mass.  514;  Swallow  v.  Emery,  11 1  Mass.  355- 


Fixtures. 

In  this  state  as  in  many  others,  the  question  of  rights  as 
between  a  conditional  sale  vendor,  and  third  parties,  where  the 
property  involved  becomes  attached  to  real  estate;  has  been 
largely  litigated.  The  earlier  decisions  made  the  rule  that 
where  such  property  was  fastened  to  a  building  no  matter  in 
how  slight  a  manner,  the  vendor  lost  all  rights,  and  must  look 
to  the  vendee  in  person  for  payment.  Later  this  rule  was 
broadened  somewhat,  and  became  the  generally  accepted  regu- 
lation for  many  states,  as  follows  : 

Where  personal  property  is  attached  to  a  building  in  such 
a  manner  that  it  may  be  removed  without  material  injury  to 
itself,  or  to  the  building  or  to  both,  then  vendor  may  have  pos- 
session upon  default ;  but  where  same  becomes  incorporated 
into  the  building  or  fastened  thereto  in  such  a  manner  that  its 
removal  will  cause  great  injury  to  the  building  or  to  the  prop- 
erty, or  to  both,  it  cannot  be  taken  possession  of,  and  the  ven- 
dor's remedy  would  be  through  an  action  in  equity  to  have  the 
balance  unpaid  on  the  contract  declared  a  lien  upon  the  build- 
ing itself.  Until  1912  no  recording  or  filing  of  the  contract  was 
required,  but  in  that  year  a  law  was  passed  (Chap.  271)  mak- 
ing it  necessary  to  record,  as  against  a  mortgagee,  purchaser, 
or  grantee  of  such  building  or  real  estate.  The  perplexing 
question  as  to  what  degree  of  attachment  makes  it  necessary  to 
record  is  still  present.  A  safe  rule  to  follow  would  be,  that 
w^herever  the  connection  is  in  any  manner  permanent,  the  re- 
cording should  be  attended  to. 


MASSACHUSETTS.  1 85 


Fixture,  What  Is. 


Clary  v.  Owen,  15  Gray  522;  Pierce  v.  George,  108  Mass. 
78;  Southbridge  Sav.  Bk.  v.  Exeter  Machine  Works,  127  Mass. 
542;  Smith  Co.  V.  Servin,  130  Mass.  511;  Ridgeway  Stove  Co. 
V.  Way,  141  Mass.  557,  6  N.  E.  714;  Southbridge  Sav.  Bk.  v. 
Mason,  147  Mass.  500,  18  N.  E.  406;  Meagher  v.  Hayes,  152 
Mass.  228,  25  N.  E.  105 ;  De  La  Vergne  Refrig.  Machine  Co.  v. 
Hub  Brevi^ing  Co.  et  al,  175  Mass.  419,  56  N.  E.  584. 

Fixture,  What  Is  Not. 

Hanrahan  v.  O'Reilly,  102  Mass.  201  ;  Maguire  v.  Park,  140 
Mass.  21,  I  N.  E.  750;  Carpenter  v.  Walker,  140  Mass.  416,  5 
N.  E.  160;  Wentvvorth  v.  Woods  Machine  Co.,  163  Mass.  28,  39 
N  E.  414;  Lorain  Steel  Co.  v.  Norwalk  etc.  Street  Ry.,  187 
Mass.  500,  73  N.  E.  646. 

Landlord's   Lien. 

There  is  no  provision  of  law  extending  to  a  landlord,  any 
lien  for  rent  against  personal  property  found  upon  his  premises. 

Notes. 

The  giving  of  a  promissory  note  in  Massachusetts  cover- 
ing a  pre-existing  debt,  is  presumed  to  be  payment,  but  such 
presumption  may  be  rebutted  by  competent  proof  or  an  express 
provision  to  the  contrary  in  the  contract.  Reed  v.  Upton,  10 
Pick.  522;  Sloan  v.  McCarty,  134  Mass.  245;  Bay  State  Paper 
Co.  V.  Duggan,  214  Mass.  166,  100  N.  E.  1083;  Hoe  et  al  v-  Rex 
205  Mass.  214,  91  N.  E.  154. 

Election  of  Remedies. 

Where  the  vendor  of  personal  property  delivered  under 
conditional  sale  contract  having  two  or  more  remedies  upon  de- 
fault, elects  to  pursue  one  of  them  and  secures  relief,  the  others 


l86  CONDITIONAL  SALES. 

are  deemed  abandoned.     Ormsby  v.  Dearborn,  ii6  Mass.  386; 

Bailey  v.  Hervey  &  One,  135  Mass.  172;  Whitney  v.  Abbott, 
191  Mass.  59,  yj  N.  E.  524;  Frisch  v.  Wells,  200  Mass.  429,  86 
N.  E.  775;  Miller  v.  Hyde,  161  Mass.  472,  37  N.  E.  760;  Haynes 

V.  Temple,  198  Mass.  372,  84  N.  E.  467. 

Repossession  and  Refund. 

There  is  no  provision  of  law  making  a  refund  necessary  in 
this  state,  where  the  property  is  repossessed  upon  default. 
There  certainly  could  be  no  refund  collected  if  the  contract  ex- 
pressely  stated  to  the  contrary. 

When  vendor  has  taken  possession  upon  default,  the  prop- 
erty must  be  held  fifteen  days,  during  which  time  vendee  has 
the  right  of  redemption  upon  paying  the  full  balance  with  in- 
terest, and  all  lawful  charges  and  expenses.  (See  Household 
Furniture).  Revised  Laws,  Page  1708,  Chap.  198,  §  11;  Vin- 
cent V.  Cornell,  12  Pick.  294;  Fairbank  v.  Phelps,  22  Pick.  535  ; 
Hill  V.  Freeman,  3  Cush.  257;  Robinson  v.  Way,  163  Mass.  212, 
39  N.  E.  1009;  Cottrell  &  Sons  Co.  v.  Carter  Pice  Co.,  173 
Mass.  155,  53  N.  E.  375;  Hoe  et  al  v.  Rex.  Mfg.  Co.,  205  Mass. 
214,  91  N-  E.  154;  Drake  v.  Metropolitan  Mfg.  Co.,  218  Mass. 
112,  105  N.  E.  634;  Drake  v.  Metropolitan  Mfg.  Co.,  223  Mass. 
314,  III  N.  E.  873. 

Railroad  Equipment, 

Railroad  or  street  railway  equipment  or  rolling  stock  may 
be  delivered  under  conditional  sale  contract,  or  lease  with  op- 
tion to  purchase,  but  no  such  contract  is  valid  as  against  any 
subsequent  attaching  creditor,  or  subsequent  bona  fide  pur- 
chaser for  value,  unless  it  is  in  writing  executed  by  the  parties 
thereto,  and  duly  acknowledged  by  the  vendee,  lessee  or  bailee 
in  the  same  manner  as  deeds  are  acknowledged  before  a  magis- 
trate authorized  to  take  acknowledgment  of  deeds,  and  is  there- 
after recorded  in  the  office  of  the  secretary  of  the  common- 
wealth.   Nor  is  such  contract  valid  as  above  stated  unless  each 


MASSACHUSETTS.  1 87 

locomotive,  engine  or  car  so  sold,  leased,  hired  or  contracted  for 
has  the  name  of  the  vendor^  lessor,  or  bailor  plainly  marked  on 
each  side  thereof,  followed  by  the  word  "vendor,"  "lessor"  or 
"bailor"  as  the  case  may  be.  When  payment  in  full  shall  have 
been  received  a  declaration  in  writing  thereof  may  be  made  by 
the  vendor,  lessor  or  bailor,  or  his  or  its  assignee  on  the  mar- 
gin of  the  record,  duly  attested,  or  it  may  be  made  by  a  separate 
instrument  to  be  acknowledged  by  the  vendor,  lessor  or  bailor, 
or  his  or  its  assignee,  and  recorded  as  aforesaid.  Fee  for  re- 
cording such  contract  or  declaration  is  $5.00.  Fee  for  noting 
declaration  of  discharge  upon  the  record  is  $i.oo.  Revised 
Laws,  Sup.  (1902-1906)  Page  576,  §§  59-60. 

Household  Furniture. 

If  a  contract  for  the  sale  of  personal  property  is  made  on 
condition  that  the  title  thereto  shall  not  pass  until  the  purchase 
money  has  been  fully  paid,  and  the  vendor  upon  default  takes 
from  the  vendee  possession  of  the  property,  the  vendee  may 
within  15  days  after  such  taking,  redeem  the  property  so  taken 
by  paying  to  the  vendor  the  full  amount  then  unpaid  with  inter- 
est and  all  lawful  charges  and  expenses  due  to  the  vendor.  Re- 
vised Laws,  Page  1708,  Chap.  198,  §  11. 

Such  contracts  for  the  sale  of  furniture  or  other  household 
eflfects  in  the  form  of  a  lease  or  otherwise,  shall  be  in  writing 
and  a  copy  thereof  shall  be  furnished  to  the  vendee  by  the  ven- 
dor at  the  time  of  such  sale;  and  all  payments  made  by  or  in 
behalf  of  the  vendee  and  all  charges  in  the  nature  of  interest  or 
otherwise  as  they  accrue,  shall,  if  the  vendee  so  requests  be  in- 
dorsed by  the  vendor  or  his  agent  upon  such  copy.  A  failure 
of  the  vendor  through  negligence  to  comply  with  any  of  the 
provisions  of  this  section  shall  suspend  his  rights  under  the 
contract  while  the  failure  continues.  His  refusal  or  wilful  or 
fraudulent  failure  so  to  comply  shall  be  a  waiver  by  him  of  the 
conditions  of  the  sale.  Revised  Laws,  Page  1708,  Chap.  198, 
§  12. 


l88  CONDITIONAL  SALES. 

Thirty  days  at  least  before  taking  possession  of  said  furni- 
ture or  effects  for  default  of  the  vendee  the  vendor  shall  de- 
mand in  writing  of  the  vendee  or  other  person  in  charge  of  said 
furniture  or  effects  the  balance  then  due  and  shall  furnish  to 
said  vendee  or  other  person  an  itemized  statement  of  the  ac- 
count showing  the  amount  due  thereon.  If  said  vendee  or  other 
person  can  by  the  exercise  of  reasonable  care  and  diligence  be 
found  by  the  vendor,  the  15  days  during  which  his  right  of  re- 
demption exists  under  the  provisions  of  section  eleven  shall  not 
begin  to  run  until  said  demand  has  been  made,  said  statement 
furnished  and  said  thirty  days  have  expired.  If  75%  or  more 
of  the  contract  price  has  been  paid  by  a  vendee  whose  right  of 
redemption  has  expired,  the  furniture  or  effects  shall,  if  the 
vendee  or  his  legal  representative  in  writing  so  requests  the 
vendor,  be  sold  by  public  auction  after  due  advertisement,  which 
shall  be  published  at  least  three  days  prior  to  the  sale  in  one  of 
the  principal  newspapers  if  any  published  in  the  city  or  town, 
otherwise  in  one  of  the  principal  newspapers  published  in  the 
county,  in  which  the  furniture  or  effects  are  situated.  If  the 
vendor  refuses  or  neglects  to  make  the  sale  as  provided  herein 
the  right  of  redemption  shall  not  be  foreclosed.  If  a  balance 
of  the  proceeds  of  the  sale  remains  after  deducting  the  actual 
expenses  of  sale  by  auction  and  paying  from  said  proceeds  to 
the  vendor  the  balance  of  the  contract  price  due  him,  it  shall  be 
paid  to  the  vendee  or  his  legal  representative.  Revised  Laws, 
Pages  1708-9,  Chap.  198,  §  13;  Lee  v.  Gorham,  165  Mass.  130, 
42  N.  E.  556;  Brown  v.  Golthwaite  Furniture  Co.,  186  Mass. 
51,  71  N.  E.  71  ;  Desseau  v.  Holmes  &  One,  187  Mass.  486,  73 
N.  E.  656. 


MICHIGAN. 


Legal  Status  of  Conditional  Sale  Contracts. 

Conditional  contracts  of  sale  are  not  provided  for  by 
statute  as  regards  ordinary  transactions,  where  the  property 
involved  passes  from  the  owner  to  one  who  will  make  use  of 
it  himself.  Such  dealings  are,  however,  firmly  established  by 
court  decisions.  Where  the  vendee  is  regularly  engaged,  or 
about  to  engage,  in  the  business  of  buying  and  selling  such 
property,  or  where  the  articles  are  railroad  equipment,  then  the 
statutory  requirements  must  be  observed.  (See  Recording  or 
Filing).  Public  Acts  1915,  §  64;  Course  v.  Tregent,  11  Mich. 
65;  Whitney  v.  McConnell,  29  Mich.  12;  McMillan  v.  Larned, 
41  Mich.  521,  2  N.  W.  662;  Winchester  v.  King,  46  Mich.  102, 
8  N.  W.  722;  Myres  v.  Maple,  60  Mich.  339,  27  N.  W.  536;  Ed- 
wards V.  Symons,  65  Mich.  348,  32  N.  W.  796;  Hood  v.  Olin  & 
One,  68  Mich.  165,  36  N.  W.  177;  Kendrick  v.  Beard,  81  Mich. 
182,  45  N.  W.  837;  Hovey  &  One  v.  Grow,  81  Mich.  314,  45  N. 
W.  985;  Tufts  V.  D'Arcambal,  85  Mich.  185,  48  N.  W.  497; 
Thrilby  et  al  v.  Rainbow,  93  Mich.  164,  53  N.  W.  159;  Powell 
V.  Eckler,  96  Mich.  538,  56  N.  W.  i ;  Vaughn  v.  McFadyen,  no 
Mich.  234,  68  N.  W.  135  ;  Cable  Co.  v.  Wasegizig,  130  Mich. 
387,  90  N.  W.  24;  Oliver  Chilled  Plow  Co.  v.  Dolan,  139  Mich. 
668,  103  N.  W.  186;  Bunday  v.  Columbus  Machine  Company, 
143  Mich.  10,  106  N.  W.  397;  Van  Buren  v.  Stubbins,  149  Mich. 
206,  112  N.  W.  706;  A'Hern  v.  Lipsett,  154  Mich.  196,  117  N. 
W.  577;  Bearing  etc.  Co.  v.  Thompson,  156  Mich.  365,  120  N. 
W.  801  ;  National  Cash  Register  Co.  v.  Richards,  159  Mich.  128, 
123  N.  W.  587;  Presque  Isle  etc.  Co.  v.  Reichel  et  al.,  179  Mich. 
466,  146  N.  W.  231  ;  Springer  et  al  v.  Fuller,  162  N.  W.  973. 

189 


190  CONDITIONAL  SALES. 

How  Executed. 

They  should  be  in  writing  signed  by  the  vendee  but  do  not 
need  to  be  signed  by  the  vendor,  the  acceptance  of  such  a  con- 
tract on  the  part  of  the  vendor  by  acting  upon  it  or  shipping 
the  goods  being  sufficient  to  make  a  binding  contract  as  be- 
tween the  parties  thereto.  There  is,  however,  no  objection  to 
the  contract  being  formally  signed  and  accepted  by  the  vendor. 
Dunlap  v.  Gleason,  15  Mich.  158;  National  Cash  Register  Com- 
pany V.  Dehn,  139  Mich.  406,  102  N.  W.  965. 

Acknowledgment  or  Proof. 

There  is  no  provision  for  acknowledgment  of  such  an  in- 
strument by  the  vendee  or  vendor,  or  for  signing  or  proof  by  a 
subscribing  witness. 

Recording  or  Filing. 

Where  the  property  involved  goes  directly  to  the  consumer 
or  user,  there  is  no  provision  for  recording  or  filing,  and  the 
contract  is  valid  as  to  all  third  parties  except  where  same  is  at- 
tached to  a  building  in  such  a  manner  as  to  become  a  material 
part  thereof.  If,  however,  the  property  goes  to  a  person,  firm 
or  corporation  regularly  engaged,  or  about  to  engage  in  the 
business  of  buying  and  selling  such  property  (retailer)  with 
the  understanding  that  same  may  be  resold,  then  as  to  all  third 
parties  a  copy  of  the  contract  must  be  filed  with  the  township 
or  city  clerk  or  recorder  of  the  township  or  city  where  the  ven- 
dee resides,  if  a  resident  of  the  state,  or  if  a  non-resident  then  in 
a  like  office  where  the  property  is  located.  No  definite  time  is 
set  for  such  filing,  but  it  should  be  done  before  vendee  gets  pos- 
session if  possible.  Public  Acts  1915,  §  64;  Compiled  Laws, 
§§  9523-32;  Howell's  Michigan  Statutes,  11407-11416. 

Recording  Fee. 

The  fees  for  filing  such  contract,  are  six  cents,  and  for  in- 
dexing same  to  each  party  thereto,  six  cents.  Compiled  Laws, 
§  9529;  Howell's  Mich.  Statutes,  §  11413. 


MICHIGAN.  191 

Re-Recording  or  Renewal. 

Ordinary  contracts  need  no  refiling  and  are  valid  for  the 
term  of  six  years.  There  is  no  express  provision  for  refiling 
contracts  made  with  retailers,  and  same  are  valid  for  a  like 
term.  Compiled  Laws,  §  9728;  Howell's  Mich.  Statutes,  § 
14135- 

Discharge. 

A  contract  which  has  been  filed,  must  when  paid  or  per- 
formed on  in  full,  be  discharged.  Such  discharge  may  be  made 
by  filing  a  written  release  with  the  clerk  or  recorder,  and  there 
is  no  provision  for  same  being  acknowledged ;  or  the  vendor, 
his  personal  representative,  or  assignee,  may  appear  before  such 
officer  and  sign  a  release  on  the  page  of  the  book  where  same  is 
indexed.  Failure  to  discharge  after  payment  in  full,  and  7  days 
written  request  given,  subjects  vendor  to  a  fine  of  $25.00  and  all 
actual  damages. 

Fees  for  discharge,  same  as  for  filing.  Compiled  Laws, 
§§  9531-32;  Howell's  Mich.  Statutes,  11415-16. 


Criminal  Liability  of  Vendee. 

Any  person  who  shall  embezzle  or  fraudulently  remove, 
conceal,  or  dispose  of  property  held  under  conditional  contract 
of  sale,  shall  be  guilty  of  a  felony  where  the  value  of"  the  prop- 
erty is  $25.00  or  more;  and  if  convicted  shall  be  punished  by 
imprisonment  in  the  state's  prison  for  not  more  than  two  years, 
or  by  a  fine  of  not  more  than  $250.00,  or  by  imprisonment  in 
the  county  jail  for  not  more  than  six  months.  If  the  value  of 
the  property  is  less  than  $25.00,  the  crime  shall  be  a  misde- 
meanor, punishable  by  a  fine  of  not  more  than  $100.00  or  im- 
prisonment in  the  county  jail  for  not  more  than  ninety  days,  or 
by  both  such  fine  and  imprisonment.  Compiled  Laws,  §  11621 ; 
Howell's  Mich.  Statutes,  §  14659. 


192  CONDITIONAL  SALES. 

Loss,  Who  Must  Bear. 

Where  property  has  been  contracted  for  under  conditional 
sale  agreement  and  has  not  been  delivered,  the  loss  thereof 
when  it  is  destroyed  by  fire,  falls  upon  the  vendor.  Pierce  et  al 
V.  Cooley  et  al,  56  Mich.  552,  23  N.  W.  310. 

Fixtures. 

Property  sold  under  conditional  contract  of  sale,  and  fas- 
tened to  a  building  in  such  a  manner  that  it  can  be  removed 
without  material  injury  to  the  building  or  itself,  can  be  taken 
possession  of  if  the  contract  price  is  not  paid :  but  where  it  has 
become  attached  to  a  building  in  such  a  manner  as  to  make  it 
a  material  part  thereof,  and  where  it  cannot  be  removed  with- 
out great  injury  to  the  building  or  to  itself,  the  property  can- 
not be  taken  possession  of,  and  an  action  in  equity  should  be 
brought  to  enforce  a  lien  against  the  building  itself  for  the  un- 
paid balance.  Knowlton  v.  Johnson,  37  Mich.  47 ;  Ingersoll  v. 
Barnes,  47  Mich.  104,  10  N.  W.  127;  Marquette  Mfg.  Co.  v. 
Jefifery,  49  Mich.  283,  13  N.  W.  592;  Burrill  v.  Wilcox  Lumber 
Co.,  65  Mich.  571,  32  N.  W.  824;  Gill  v.  D'Armant,  90  Mich 
425,  51  N.  W.  527;  Lansing  Iron  &  Engine  Works  v.  Walker, 
91  Mich.  409,  51  N.  W.  1061 ;  Lansing  Iron  &  Engine  Works  v. 
Wilbur,  III  Mich.  413,  69  N.  W.  667;  Wickes  Bros.  v.  Hill,  115 
Mich.  333,  73  N.  W.  375. 

Landlord's  Lien. 

There  is  no  provision  that  a  landlord  shall  have  a  lien  for 
rent  upon  personal  property  found  on  his  premises. 

Notes. 

The  giving  of  notes  under  a  conditional  sale  contract  does 
not  ordinarily  supersede  such  agreement,  and  is  only  a  conven- 
ient method  of  evidencing  deferred  payments.  If,  however, 
too  great  a  part  of  the  contract  is  included  in  the  notes,  they 


MICHIGAN.  193 

may  become  non-negotiable.     Choate  v.  Stevens,  116  Mich.  28, 

74  N.  W.  289;  Wording  Grocery  Co.  v.  Blanding,  161  Mich. 
254,  126  N.  W.  212;  Atkinson  v.  Japink,  186  Mich.  335,  152  N. 
W.  1079;  Toledo  Scale  Co.  v.  Sogo,  186  Mich.  442,  152  N.  W. 
1046. 

Election  of  Remedies. 

Unless  a  conditional  sale  contract  expressly  provides 
otherwise,  the  taking  of  a  money  judgment  will  preclude  ven- 
dor from  thereafter  retaking  the  property.  Button  v.  Trader, 

75  Mich.  295,  42  N.  W.  834;  Peninsular  General  Electric  Light 
Co.  V-  Norris,  100  Mich.  496.  59  N.  W.  151  ;  Fuller  et  al  v. 
Byrne,  102  Mich.  461,  60  N.  W.  980;  Pettyplace  v.  Groton 
Bridge  8z  Mfg.  Co..  103  Mich.  155,  61  N.  W.  266;  Warner  Ele- 
vator Mfg.  Co.  V.  Capitol  Inv.  Co.  etc.,  127  Mich.  323.  86  N. 
W.  828. 

Repossession  and  Refund. 

Where  property  covered  by  a  conditional  sale  contract 
shall  have  been  retaken  upon  default,  then  unless  the  contract 
shall  so  expressly  provide,  the  vendor  cannot  retain  the  full 
amount  of  payments,  but  can  have  only  an  amount  which 
reasonably  reimburses  him  for  use  of  the  property  while  in 
vendee's  possession,  together  with  actual  damages  done  to  it 
other  than  usual  wear  and  tear,  and  in  addition  he  may  retain 
the  incidental  expenses  necessary  in  regaining  possession. 
Preston  v.  Whitney.  23  Mich.  260;  Johnson' v.  Whitmore.  27 
Mich.  463  ;  Giddy  v.  Altman.  27  Mich.  206;  Whitney  v.  McCon- 
nell,  29  Mich.  12;  Deyo  v.  Jamison,  33  Mich.  94;  Smith  v.  Lozo, 
42  Mich.  6,  3  N.  W.  227:  Adams  v.  Wood,  51  Mich.  411.  16  N. 
W.  788 ;  New  Home  Sewing  Machine  Co.  v.  Bothnane,  70  Mich. 
443,  38  N.  W.  326;  Ryan  v.  Wayson,  108  Mich.  519.  66  N.  W. 
370;  Perkins  v.  Grobben.  116  Mich.  172.  74  X.  W.  469;  Mc- 
Bryan  v.  Universal  Elevator  Co.  et  al,  130  Mich,  in,  89  N.  W. 
683;  Woods  V.  Kaufman,  135  Mich.  5.  97  N.  W.  47:  Van  Den 
Bosch  V.  Bouwman,  138  Mich.  624.  loi  N.  W.  832;  Hautala  v. 


194  CONDITIONAL  SALES. 

Dover,  176  Mich.  366.  142  N.  W.  579;  Detroit  Trust  Co.  v. 
Wormer  i\Iachinery  Co.,  177  Mich.  156,  142  N.  W.  1090;  Leh- 
nen  v.  Ryan,  185  Mich.  246,  151  N.  W.  655. 

Railroad  Equipment. 

Railroad  or  street  railway  equipment,  or  rolling  stock,  may 
be  contracted  for  under  conditional  sale  contract  or  lease  with 
option  to  purchase ;  but  in  order  that  same  shall  be  valid  as  to 
any  subsequent  judgment  creditor,  or  any  subsequent  bona  fide 
purchaser  for  value,  it  must  be  signed  by  both  parties,  be  ac- 
knowledged by  the  vendee  in  person,  or  be  proven  in  the  same 
manner  as  a  deed  of  real  estate  and  be  filed  for  record  with  the 
secretary  of  state.  Each  car,  engine  or  other  property  so  sold 
or  leased,  must  have  plainly  marked  on  each  side  the  name  of 
the  vendor,  lessor  or  bailor,  followed  by  the  word  ''owner," 
"lessor,"  or  "bailor"  as  the  case  may  be.  When  payment  in  full 
shall  have  been  made  the  record  shall  be  discharged  within  30 
days  thereafter,  and  a  failure  in  this  regard  shall  be  liable  to 
punishment  by  a  fine  of  not  more  than  S500.00.  The  discharge 
may  be  made  by  a  declaration  in  writing  upon  the  margin  of  the 
index  duly  attested,  or  by  filing  with  the  secretary  of  state  a 
declaration  of  discharge  in  writing,  same  being  duly  acknowl- 
edged by  the  vendor,  lessor,  or  bailor,  or  his  or  its  assignee. 

Fees  for  filing  and  indexing  the  contract  or  the  written  dis- 
charge $1.00  and  the  same  amount  for  noting  the  discharge 
upon  the  index.  Compiled  Laws,  §§  6336-38.  Howell's  Mich- 
igan Statutes,  §§  7037-39.  Hogan  v.  Detroit  United  Railway, 
154  Mich.  478,  118  N.  W.  140. 


MINNESOTA. 


Legal  Status  of  Conditional  Sale  Contracts. 

Conditional  contracts  of  sale  are  provided  for  by  statute 
law  in  this  state.  General  Statutes  1913,  §§  6981-6997.  Thore- 
son  V.  Minneapolis  H.  Works,  29  Minn.  341,  13  N.  W.  156; 
Beer  v.  Aultman  Taylor  Co.,  32  Minn.  90,  19  N.  W.  388; 
Thomas  Mfg.  Co.  v.  Foote,  46  Minn.  240,  48  N.  W.  1019;  Fitz- 
patrick  v.  D.  M.  Osborn  &  Co.,  50  Minn.  261,  52  N.  W.  861 ; 
Cortland  Wagon  Co.  v.  Sharvy,  52  Minn.  216,  53  N.  W.  1147; 
Wilkinson  v.  Akeley  Lumber  Co.,  56  Minn.  401,  57  N.  W.  941  ; 
Hand  v.  Ryan  Drug  Co.,  63  Minn.  539,  65  N.  W.  1081 ;  Bab- 
cock  Company  v.  Williams,  75  Minn.  147,  ']']  N.  W.  791 ;  Mc- 
Cormick  Harvester  Machine  Co.  v.  Belfany,  78  Minn.  370,  81 
N.  W.  10;  Karalis  v.  Agnew^,  11 1  Minn.  522,  127  N.  W.  440; 
Kimball  Co.  v.  Massey,  126  Minn.  461,  148  N.  W.  307;  Mc- 
Loone  v.  Brusch,  119  Minn.  286,  138  N.  W.  35;  Skoog  v.  Mayer 
Bros.  Co.,  122  Minn.  209,  142  N.  W.  193 ;  French  et  al  v.  Yale, 
124  Minn.  63,  144  N.  W.  451  ;  Norris  v.  Boston  Music  Co.,  129 
Minn.  198,  151  N.  W.  971;  Dunlop  v.  Mercer,  156  Fed.  545; 
Monitor  Drill  Co.  v.  Mercer,  163  Fed.  943. 

How  Executed. 

They  should  be  in  writing  signed  by  the  vendee  but  do  not 
need  to  be  signed  by  the  vendor,  the  acceptance  of  such  a  con- 
tract on  the  part  of  the  vendor  by  acting  upon  it  or  shipping  the 
goods  being  sufficient  to  make  a  binding  contract  as  between 
the  parties  thereto.  There  is,  however,  no  objection  to  the  con- 
tract being  formally  signed  and  accepted  by  the  vendor.  Gen- 
eral Statutes,  1913,  §  6981. 

195 


196  CONDITIONAL  SALES. 

Acknowledgment  or  Proof. 

A  contract  of  conditional  sale  is  valid  as  between  the  par- 
ties thereto  without  acknowledgment  or  proof,  or  filing  or  re- 
cording, but  in  order  to  make  it  valid,  and  to  hold  title  as 
against  creditors  of  vendee,  and  subsequent  purchasers  of  such 
property  in  good  faith,  it  is  necessary  that  the  written  contract, 
or  a  true  copy  thereof  should  be  filed.  If  the  contract  is  oral  a 
memorandum  in  writing  should  be  filed  setting  forth  the  terms 
and  conditions  thereof.  It  is  not  necessary  that  the  instrument 
be  acknowledged  by  vendee  or  vendor,  nor  that  it  be  signed 
or  proven  by  a  subscribing  witness  in  order  to  be  filed.  It  is 
required  that  the  memorandum  of  an  oral  contract  shall  be 
signed  by  vendee.     General  Statutes,  1913,  §§  6981,  6983,  6997. 

Recording  or  Filing. 

In  order  that  vendor  may  be  protected  as  against  creditors 
of  vendee  and  subsequent  purchasers  of  the  property  in  good 
faith  where  the  contract  is  in  writing  the  original  or  a  true 
copy  must  be  filed.  While  the  law  sanctions  an  oral  contract 
it  further  requires  that  a  memorandum  thereof  signed  by  ven- 
dee must  be  filed  as  against  the  parties  above  named.  There  is 
no  provision  for  recording  in  any  event. 

The  filing  officer  is  the  register  of  deeds  of  the  county 
where  the  property  is  situate  after  delivery.  No  definite  time  is 
set  for  filing  but  it  should  be  done  before  vendee  gets  posses- 
sion, if  possible.  General  Statutes  of  1913,  §§  6986-6993,  as 
amended  by  Laws  of  1917,  Chap.  158.  Dyer  v.  Thorstad,  35 
Minn.  534,  29  N.  W.  345  ;  Clark  v.  Richards  Co.,  68  Minn.  282. 
71  N.  W.  389 ;  Creamery  Package  Mfg.  Co.  v.  Tagley  &  One,  91 
Minn.  79,  97  N.  W.  412. 

Recording  Fee. 

Fee  to  the  filing  officer  for  services  rendered  is  ten  cents 
General  Statutes,  1913,  §  6987. 


MINNESOTA.  1 97 

Re-Recording  or  Renewal. 

There  is  no  provision  for  the  renewal  of  a  conditional  sale 
contract,  and  same  is  valid  for  the  term  of  six  years  after  the 
last  payment  becomes  due.    General  Statutes,  1913,  §  6983. 

Discharge. 

When  payment  in  full  under  a  conditional  sale  contract  is 
made  the  vendor,  his  representatives,  or  assigns,  shall  give 
duplicate  satisfaction  thereof,  one  to  the  person  entitled  thereto 
and  the  other  he  shall  file  at  his  own  expense,  with  the  officer 
having  custody  of  the  instrument  so  satisfied.  Such  satisfactions 
need  not  be  witnessed  or  acknowledged.  The  fee  for  filing  same 
is  ten  cents.  There  is  no  express  penalty  for  failure  to  furnish 
such  satisfactions,  but  any  person  injured  could  undoubtedly 
collect  his  actual  damages.    General  Statutes,  1913,  §  6984. 

Criminal  Liability  of  Vendee. 

None. 

Loss,  Who  Must  Bear. 

No  cases  found. 

Fixtures. 

It  has  been  determined  by  several  decisions  that  where 
property  held  under  conditional  contract  of  sale  has  been  at- 
tached to  a  building  in  such  a  manner  that  it  may  be  removed 
without  material  damage  to  the  building  or  to  itself,  the  vendor 
is  entitled  to  possession.  Where  the  property  has  been  incor- 
porated into  a  building  in  such  a  manner  that  its  removal  will 
cause  great  injury  to  the  building  or  to  the  property  itself,  it 
cannot  be  taken  possession  of  and  the  vendor  must  resort  to  an 
action  in  equity  to  have  the  balance  unpaid  under  the  contract 
declared  a  lien  against  the  building.    St.  Paul  Furniture  Co.  v. 


198  CONDITIONAL  SALES. 

Saur,  63  N.  W.  no  (No  Minn-  Citation)  ;  Northwestern  Mutual 
Life  Ins.  Co.  v.  George  et  al,  y^  Minn.  319,  79  N.  W.  1028. 

Landlord's  Lien. 

There  is  no  provision  of  law  by  which  a  landlord  is  given 
a  lien  for  rent  upon  personal  property  found  on  his  premises. 

Notes. 

The  giving  of  notes  under  conditional  sale  contract  does 
not  ordinarily  supersede  such  agreement,  and  is  only  a  con- 
venient method  of  evidencing  deferred  payments.  If,  however, 
too  great  a  part  of  the  contract  is  included  in  the  notes,  it  may 
become  necessary  to  record  same  and  the  notes  are  made  non- 
negotiable.  Third  National  Bank  v.  Armstrong,  25  Minn.  530; 
Spoon  V.  Frambach,  83  Minn.  301,  86  N.  W.  106;  C.  W.  Ray- 
mond Co.  V.  Kahn,  124  Minn.  426,  145  N.  W.  164. 

Election  of  Remedies. 

A  vendor  under  conditional  sale  agreement  may  have  two 
or  more  remedies  by  retaking  the  property,  suing  for  the  pur- 
chase price,  or  foreclosing  the  common  law  lien.  But  which- 
ever one  of  these  shall  be  exercised,  operates  as  an  election,  and 
the  others  cannot  be  enforced.  Minneapolis  Harvester  Works 
V.  Rally,  2y  Minn.  495,  8  N.  W.  597 ;  Aultman  &  Co.  v.  Olson 
etc.,  43  Minn.  409,  45  N.  W.  852 ;  Keystone  Mfg.  Co.  v.  Cassel- 
lius,  74  Minn.  115,  76  N.  W.  1028;  Alden  v.  Dyer  &  One,  92 
Minn.  134,  99  N.  W.  784;  Chase  &  Co.  v.  Kelly,  125  Minn.  317, 
146  N.  W.  II 13. 

Repossession  and  Refund. 

Unless  the  contract  provides  otherwise,  when  property  has 
been  repossessed  for  default,  the  vendee  is  entitled  to  recover 
the  amounts  paid  in,  less  a  reasonable  allowance  to  cover  rental 
and  depreciation  of  the  property  while  in  his  possession.  C.  W. 
Raymond  Co.  v.  Kahn,  124  Minn.  426,  145  N.  W.  164. 


MINNESOTA.  I99 


Railroad  Equipment. 


Equipment  or  rolling-  stock  for  railroads  may  be  condition- 
ally sold  or  leased  with  option  to  purchase.  The  contract  can- 
not be  for  a  term  of  more  than  ten  years  and  in  order  that  same 
shall  be  valid  as  against  purchasers  and  creditors  it  must  be  in 
writing,  signed  and  acknowledged  by  vendee,  and  be  filed  for 
record  with  the  secretary  of  state,  and  with  the  register  of  deeds 
for  the  county  in  which,  at  the  time  of  execution,  the  principal 
office  or  place  of  business  of  the  vendee  or  lessee  is  situated  in 
the  state.  Each  locomotive  engine,  or  car  so  sold  or  leased  shall 
have  the  name  of  the  vendor  or  lessor  plainly  marked  on  each 
side,  or  be  otherwise  so  marked  as  to  indicate  the  ownership 
thereof. 

There  is  no  provision  for  discharge,  and  the  fees  for  filing 
are  not  specifically  fixed.    General  Statutes,  1913,  §§  6225-27. 


200  CONDITIONAL  SALES    (MINNESOTA), 


MISSISSIPPI. 


Legal  Status  of  Conditional  Sale  Contracts. 

Conditional  contracts  of  sale  are  provided  for  by  statute  in 
this  state  and  are  included  with  leases,  liens,  reservations  and  re- 
mainders. Code  of  Miss.,  §  4777.  Mount  v.  Harris,  i  Sm.  &  M. 
185 ;  Ketchum  &  Cummings  v.  Brennan,  53  Miss.  596;  Le  Flore  v. 
Miller  et  al,  64  Miss.  204,  i  So.  99;  Gayden  v.  Tufts,  68  Miss. 
691,  10  So.  53;  Journey  v.  Priestly,  70  Miss.  584,  12  So.  799; 
Columbus  Bug-gy  Co.  v.  Turley  &  One.  73  Miss.  529.  19  So.  232 ; 
Young  V.  Salley,  83  Miss.  362,  35  So.  571 ;  Parry  Mig.  Co.  v. 
Lowenberg  et  al,  88  Miss.  532,  41  So.  65 ;  Greenwald  &  One,  42 
So.  89  (No  state  citation)  ;  Watts  v.  Ainsworth,  89  Miss.  40,  42 
So.  672 ;  Fairbanks  &  Co.  v.  Graves,  90  Miss.  453,  43  So.  675 ; 
Hunter  v.  Crook,  93  Miss.  812,  47  So.  430;  Burkhalter  v. 
Mitchell  &  One,  107  Miss.  92,  64  So.  967;  Broom  &  Sons  v. 
Dale  &  Sons,  109  Miss.  52,  67  So.  659. 

How  Executed. 

They  should  be  in  writing  signed  by  the  vendee  but  do  not 
need  to  be  signed  by  the  vendor,  the  acceptance  of  such  a  con- 
tract on  the  part  of  the  vendor  by  acting  upon  it  or  shipping  the 
goods  being  sufficient  to  make  a  binding  contract  as  between 
the  parties  thereto.  There  is,  however,  no  objection  to  the  con- 
tract being  formally  signed  and  accepted  by  the  vendor.  Code 
of  Mississippi,  §  4777.  Ham  v.  Cerniglia,  73  Miss.  290,  18  So. 
577;  Parker  v.  Payne,  95  Miss.  375,  48  So.  835. 

Acknowledgment  or  Proof. 

Such  a  contract  is  valid  as  between  the  parties  thereto 
without  acknowledgment,  proof,  filing  or  recording.    But  if  the 


201 


202  CONDITIONAL  SALES. 

contract  is  not  recorded,  and  the  vendee  transacts  business  as 
a  trader,  or  otherwise,  with  the  addition  of  the  words  "Agent," 
"Factor"  "and  Company,"  "and  Co."  or  like  words  and  fails  to 
disclose  the  name  of  his  principal  or  partner  by  a  sign  in  letters 
easy  to  be  read  placed  conspicuously  at  the  building  where  such 
business  is  transacted;  or  if  the  vendee  transacts  business  in  his 
own  name  without  any  such  additions,  the  law  provides  that  the 
property,  stock,  money,  and  choses  in  action  used  or  required  in 
such  business  shall,  as  to  the  creditors  of  any  such  person  be 
liable  for  his  debts,  and  be  in  all  respects  treated  in  favor  of 
his  creditors  as  his  property.  Code  of  Mississippi,  §§  4777,  4784. 

Recording  or  Filing. 

Within  the  period  of  three  years  from  the  date  when  a  ven- 
dee secures  possession  of  property  under  a  conditional  sale  con- 
tract, such  instrument  is  valid  without  recording  or  filing  as  to 
all  persons  excepting  creditors  of  a  vendee  who  shall  transact 
business  as  a  trader  or  otherwise  with  the  addition  of  the  words 
"Agent,"  "Factor,"  "and  Company,"  "and  Co."  or  like  words, 
and  fail  to  disclose  the  name  of  his  principal  or  partner  by  a 
sign  in  letters  easy  to  be  read  placed  conspicuously  at  the  build- 
ing where  such  business  shall  be  transacted,  or  as  to  creditors 
of  a  vendee  who  shall  transact  business  in  his  own  name  with- 
out any  such  additions. 

It  will  be  noted  that  where  the  vendee  is  a  person  other 
than  one  who  "transacts  business,"  then  such  a  contract  will 
be  valid  for  three  years  without  recording  or  filing  as  to  all 
third  parties. 

It  appears  to  be  so  difficult  under  ordinary  business  con- 
ditions for  a  vendor  to  distinguish  between  the  circumstances 
which  make  recording  unnecessary,  and  those  which  require  it, 
that  it  is  found  advisable  to  have  all  contracts  recorded. 

A  contract  of  conditional  sale  may  be  recorded,  if  signed 
and  acknowledged  by  the  vendee  in  person,  or  where  signed  by 
the  vendee  and  by  one  subscribing  witness  to  his  signature,  and 


MISSISSIPPI.  203 

the  said  witness  has  proven  same  by  his  oath.  This  subscrib- 
ing witness  may  be  the  salesman  who  secures  the  order,  pro- 
vided he  does  not  also  sign  the  contract  for  and  on  behalf  of 
the  vendor.  The  original  contract  should  be  recorded  with  the 
clerk  of  chancery  court  in  the  county  where  the  property  is 
located.  Code  of  Mississippi,  §§  2784,  2785,  2793,  4777,  4784. 
Sign  is  necessary  or  record.     Gumble  v.  Coon,  59  Miss.  264 ; 

Quin  V.  Myles,  59  Miss.  375 ;  Wolf  &  One  v.  Kahn,  62  Miss. 
814;  Paine  v.  Hall  Safe  and  Lock  Co.,  64  Miss.  175,  i  So.  56; 
Hamblet  et  al  v.  Steen,  65  Miss.  474,  4  So.  431 ;  Adams  v.  Berg, 
67  Miss.  234,  7  So.  225 ;  Ouinn  v.  Mosler  Safe  Co.,  (no  state 
citation)  21  So.  303;  Merchants  &  Farmers  Bk.  v.  Schaaf,  108 
Miss.  121,  66  So.  402;  Gillaspy  v.  International  Harvester  of 
Am.,  109  Miss.  136,  67  So.  904;  Payne  Hardware  Co.  v.  Inter- 
national Harvester  of  Am.,  no  ]\Iiss.  783,  70  So.  892. 

No  sign  required :  Schoolfield  etc.  Co.  v.  Wilkings,  60  Miss. 
238;  John  \'an  Range  Co.  v.  Allen,  (no  state  citation),  7  So.  499; 
Gayden  v.  Tufts,  68  Miss.  691  ;  Harris  v.  Robson  &  One.  68 
Miss.  506,  9  So-  829 ;  Tufts  v.  Stone,  70  Miss.  54,  1 1  So.  792 ; 
Jennings  v.  Wilson,  71  Miss.  42,  13  So.  259;  Mask  v.  Allen  (no 
state  citation),  18  So.  82;  McKee  v.  Mitchell  et  al,  109  Miss. 
320,  68  So-  468 ;  Orr  v.  Jackson  Jitney  Car  Co.,  75  So.  945. 

Recording  Fee. 

The  fee  of  the  recording  officer  is  ten  cents  for  each  one 
hundred  words.  Four  figures  are  considered  as  a  word.  Code 
of  Mississippi,  §  2174. 

Re-Recording  or  Renewal. 

Such  a  contract  is  valid  for  the  period  of  six  years.  There 
is  no  provision  of  law  providing  for  a  re-recording  or  renewal. 

Discharge. 

There  is  no  provision  requiring  that  a  contract  of  condi- 
tional sale  shall  be  discharged  from  record  after  payment.     It 


204  CONDITIONAL  SALES. 

is,  however,  always  advisable  to  release  same  upon  proper  de- 
mand, as  any  party  interested  might  be  able  to  collect  his  actual 
damages  resulting  from  a  failure  to  discharge  after  demand. 

Criminal  Liability  of  Vendee. 

No  provision. 

Loss,  Who  Must  Bear. 

Where  property  delivered  under  conditional  sale  contract 
has  been  injured  or  destroyed  before  payment  the  loss  falls  on 
vendee.  Burnley  v.  Tufts,  66  Miss.  48,  5  So.  627;  McPherson 
V.  Acme  Lbr.  Co.,  70  Miss.  649,  12  So.  857;  Pufifer  Mfg.  Co.  v. 
Dearman,  97  Miss.  622,  54  So.  310. 

Fixtures. 

It  is  a  well  established  rule  of  law  in  this  state  that  prop- 
erty sold  under  conditional  contract  of  sale  and  fastened  to  a 
building  can,  if  not  paid  for.  be  taken  possession  of  by  the  ven- 
dor, provided  the  property  may  be  removed  without  material 
injury  to  the  building  or  to  itself.  If  it  has  been  incorporated- 
into  the  building  so  that  it  cannot  be  removed  without  great 
injury,  the  vendor  would  undoubtedly  have  a  right  of  action  in 
equity  to  charge  the  balance  unpaid  as  a  lien  upon  the  building 
itself.  Duke  v.  Shackelford,  56  Miss.  552 ;  John  Van  Range  Co. 
V.  Allen,  (no  state  citation),  7  So.  499. 

Landlord's  Lien. 

A  landlord's  lien  in  general  only  applies  to  agricultural 
products  raised  on  his  land,  but  the  interest  of  the  tenant  in 
other  personal  property  found  on  the  premises  may  be  reached. 
A  distress  for  rent,  however,  can  only  include  the  vendee's 
equity  in  conditionally  sold  property,  whether  the  contract  is 
recorded  or  not,  where  no  question  of  a  proper  sign  upon  the 


MISSISSIPPI.  205 

place  of  business  is  involved.  Code  of  Mississippi,  §§  2867. 
2868.  Zimmerman  Lbr.  Co.  v.  Elder  et  al,  (no  state  citation), 
29  So.  466;  Richardson  v.  McLaurin,  69  Miss.  71,  12  So.  264; 
Tufts  V.  Stone,  70  Miss.  54,  1 1  So.  792 ;  Ham  v.  Cerniglia,  73 
Miss.  290,  18  So.  577;  Paine  v.  Hall  Safe  &  Lock  Co.,  64  Miss. 
175,  I  So.  56. 

Notes. 

The  giving  of  notes  under  a  conditional  sale  contract  does 
not  ordinarily  supersede  such  contract,  and  is  only  a  convenient 
method  of  evidencing  deferred  payments.  If,  however,  too 
great  a  part  of  the  contract  is  included  in  the  notes  it  may  be- 
come necessary  to  record  same,  and  the  notes  are  made  non- 
negotiable.  McPherson  v.  Acme  Lbr.  Co.,  70  Miss.  649,  12  So. 
857;  Ross  etc.  Fdry  Co.  v.  Pascagaula  Ice  Co.  et  al,  72  Miss. 
608,  18  So.  364. 


Election  of  Remedies. 

\\'hen  suit  is  brought  for  the  purchase  price  under  a  con- 
ditional contract  of  sale  and  a  judgment  is  obtained,  but  not 
collected,  the  vendor  may  afterwards  replevin  the  property. 
Dederick  v.  Wolf,  68  Miss.  500,  9  So.  350. 


Repossession  and  Refund. 

There  seems  to  be  no  requirement  for  a  refund  upon  re- 
possession. Duke  V.  Shackleford,  50  Miss.  552 ;  McPherson  v. 
Acme  Lbr.  Co.,  70  Miss.  649,  12  So.  857. 


Railroad  Equipment, 

Contract  cannot  be  for  more  than  15  years  but  in  order 
that  same  may  be  valid  for  that  period  as  against  all  purchasers 
and  creditors,  same  must  be  acknowledged  by  the  vendee  or 
lessee  and  be  recorded  in  the  office  of  the  clerk  of  the  chancery 


206  CONDITIONAL  SALES. 

court,  in  whicn  is  situated,  at  the  time  of  execution,  thereof, 
the  principal  office  of  the  vendee  or  lessee  in  the  state,  or  the 
contract  may  be  recorded  with  the  secretary  of  state.  Each 
locomotive  engine  or  car  so  sold  or  contracted  to  be  sold  or 
leased  shall  have  the  name  and  residence  of  the  vendor  or  lessor 
plainly  placed  or  marked  on  each  side  thereof,  and  also  the  word 
"vendor"  or  "lessor"  as  the  case  may  be,  or  shall  be  conspicu- 
ously marked  so  as  to  indicate  such  residence  and  the  character 
of  interest  therein  or  shall  be  otherwise  marked  so  as  to  indi- 
cate the  ownership  thereof.  Code  of  1906,  §§  4103-41 05.  Ses- 
sion Laws,  1910,  Chap.  212,  page  214. 


Forms. 

PROOF  BY  SUBSCRIBING  WITNESS. 

State  of  Mississippi,    / 
County  of  Grenada,      j 

Personally  appeared  before  me,  the  undersigned,  a  notary 
public  in  and  for  said  county  and  state,  Arthur  Wright,  who  is 
personally  known  to  me,  and  who  having  been  by  me  duly 
sworn,  deposes  and  says  that  he  saw  the  within  named  Frank 
Armstrong,  whose  name  is  subscribed  to  the  attached  contract, 
sign  and  deliver  the  same  on  the  day  and  date  therein  men- 
tioned, and  that  same  was  signed  by  him  as  a  witness  thereto, 
in  the  presence  of  said  Frank  Armstrong. 

Arthur  Wright. 


Sworn  to  and  subscribed  before  me  this 
1 2th  day  of  July,  191 7. 

Henry  P.  Adams, 

Notary  Public  in  and  for 

notarial  ) 


seal. 


MISSISSIPPI.  207 

ACKNOWLEDGMENT  BY  AN  INDIVIDUAL. 

State  of  Mississippi,    ) 

'-  ss. '. 
County  of  Monroe.       j 

Personally  appeared  before  me  James  E.  Sherman,  a  no- 
tary public  in  and  for  the  county  and  state  aforesaid,  the  within 
named  Morris  T.  Lathrop,  who  acknowledged  that  he  signed 
and  delivered  the  foregoing  instrument  on  the  day  and  year 
therein  mentioned. 

Given  under  my  hand  this  12th  day  of  July  A.  D.  1917. 

James  E.  Sherman, 

Notary  Public  in  and  for , 

^  notarial    / 
]      seal.        \ 

ACKNOWLEDGMENT  BY  A  CORPORATION. 

State  of  Mississippi,    ) 

-  ss  ' 
County  of  Monroe.       i 

Personally  appeared  before  me  James  E.  Sherman,  a  no- 
tary i)ublic,  in  and  for  the  county  and  state  aforesaid,  Samuel 
G.  P>aker  who  is  personally  known  to  me,  and  who  acknowl- 
edged that  he.  the  said  Samuel  G.  Baker,  as  president  of  and 
for  and  on  behalf,  and  by  authority  of  the  Licpiid  Air  Company, 
a  corporation  organized  and  existing  under  the  laws  of  the 
State  of  Mississippi,  signed  the  above  and  foregoing  instru- 
ment and  affixed  the  corporate  seal  of  said  company  thereto 
and  delivered  said  instrument  on  the  day  and  year  therein  men- 
tioned. 

Given  under  my  hand  and  seal  of  office  this  12th  day  of 
July,  A.  D.  1917. 

James  E.  Sherman, 

Notary  Public  in  and  for . 

^  notarial     i 
I      seal.         I| 


2o8  CONDITIONAL  SALES. 

Officers  Before  Whom  Acknozvledgments  May  Be  Taken. 

Within  the  State.  A  judge  of  any  United  States  court;  a 
judge  of  the  supreme  or  circuit  courts;  a  chancellor;  a  clerk 
of  any  court  of  record;  a  notary  public  with  seal;  a  justice  of 
the  peace;  a  mayor  of  any  city,  town  or  village,  or  a  member 
of  the  county  board  of  supervisors. 

Without  the  State,  but  Within  the  United  States.  Any  judge 
of  the  United  States  supreme,  circuit  or  district  court ;  any 
judge  or  justice  of  the  supreme  or  superior  court  of  any  state 
or  territory ;  any  notary  public  with  seal ;  any  clerk  of  a  court 
of  record  ;  any  justice  of  the  peace,  his  official  character  being 
certified  under  seal  of  some  court  of  record  in  his  county. 


MISSOURI. 


Legal  Status  of  Conditional  Sale  Contracts. 

Conditional  contracts  of  sale  are  provided  for  by  statute 
law  in  this  state.  Ann.  Statutes,  §§  3412-13.  Robbins  v.  Phil- 
lips, 68  Mo.  100;  Peet  v.  Spencer,  90  Mo.  384,  2  S.  W.  434; 
Hoovens  etc.  Co.  v.  Featherstone's  Sons  et  al,  iii  Fed.  Si  ;  John 
Deere  Plow  Co.  v.  McDavid,  137  Fed.  802;  In  re:  Smith  & 
Nixon  Piano  Co.,  149  Fed.  iii. 


How  Executed. 

They  should  be  in  writing-  signed  by  the  vendee  but  do  not 
need  to  be  signed  by  the  vendor,  the  acceptance  of  such  a  con- 
tract on  the  part  of  the  vendor  by  acting  upon  it  or  shipping  the 
goods  being  sufficient  to  make  a  binding  contract  as  between 
the  parties  thereto.  There  is,  however,  no  objection  to  the  con- 
tract being  formally  signed  and  accepted  by  the  vendor.  Sum- 
ner V.  Cottey,  71  Mo.  121. 


Acknowledgment  or  Proof. 

Where  such  a  contract  is  to  be  recorded,  then  the  original 
must  be  used,  and  must  have  been  acknowledged  by  vendee  in 
person  or  have  been  proven  by  a  subscribing  witness.  The 
original  or  a  copy  may  be  filed,  and  no  acknowledgment  or 
proof  is  necessary.  Ann.  Statutes,  §§  906,  3404,  3412-13.  Bow- 
ser &  Co.  v.  Garwitz,  185  Mo.  App.  420,  170  S.  W.  927;  Mus- 
selmanv.  City  of  Joplin,  (no  Mo.  App.  citation),  180  S.  W. 
1058. 

209 


2IO  CONDITIONAL  SALES. 

Recording  or  Filing. 

A  conditional  sale  contract  may  be  either  recorded  or  filed, 
and  there  appears  to  be  no  advantage  in  recording.  A  copy  of 
such  contract  may  be  filed,  and  no  acknowledgment  or  proof 
or  signing  by  subscribing  witness  is  required.  In  case  the 
original  is  recorded  same  must  either  have  been  acknowledged 
bv  the  vendee  in  person,  or  such  vendee's  signature  must  have 
been  proven  by  one  subscribing  witness. 

The  recording  or  filing  officer  is  the  register  of  deeds  for 
the  county  where  the  vendee  resides,  if  a  resident  of  the  state, 
or  if  not  such  resident,  then  of  the  county  where  the  property 
is  situated  when  the  contract  is  executed.  Within  the  limits  of 
St.  Louis,  Mo.  the  recording  or  filing  shall  be  made  with  the  re- 
corder of  deeds  for  the  city. 

It  will  be  seen  that  where  the  vendee  resides  without  the  state 
of  Missouri,  and  the  property  covered  is  without  the  said  state 
when  the  contract  is  made,  then  the  situation  is  not  provided  for, 
and  the  best  compliance  which  can  be  made  is  to  file  or  record  in 
the  county  where  the  property  may  be  located  after  delivery. 
Where  such  location  is  within  the  city  of  St.  Louis,  then  file  or 
record  with  the  city  recorder  of  deeds.  No  definite  time  is  set  for 
filing  or  recording,  but  it  should  be  done  before  vendee  secures 
possession  if  possible.  Ann  Statutes,  §§  3404,  3412-13.  Collins  v. 
Wilhoit,  108  Mo.  451,  18  S.  W.  839;  American  Clay  Machinery 
Co.  V.  Sedalia  etc.  Co.,  174  Mo.  App.  485,  160  S.  W.  902 ;  Twenti- 
eth Century  Mfg.  Co.  v.  Excelsior  Springs  etc.  Co.,  (no  Mo.  App. 
citation),  171  S.  W.  944. 


Recording  Fee. 

Where  a  contract  is  recorded  the  fee  is  eight  cents  per  one 
hundred  words  Where  the  contract  or  a  copy  is  filed  the  fee 
is  ten  cents.     Ann.  Statutes,  §§  3256,  3406. 


MISSOURI.  211 


Re-Recording  or  Renewal. 

The  contract  is  valid  for  a  term  of  five  years,  there  is  no 
provision  for  re-recording  or  renewal.    Ann.  Statutes,  §  3407. 


Discharge. 

There  is  no  provision  for  discharge  and  no  penalty  for  fail- 
ure to  discharge ;  but  it  is  always  advisable  upon  request  of 
vendee  or  any  other  proper  party  to  furnish  a  discharge. 

Criminal  Liability  of  Vendee. 

There  is  no  provision  making  it  a  crime  for  vendee  to  sell, 
dispose  of  or  mortgage  property  conditionally  sold.  The  law 
makes  it  a  crime  to  sell  or  dispose  of  property  covered  by  a 
chattel  mortgage.    Ann  Statutes,  §  1933. 

Loss,  Who  Must  Bear. 

Where  property  has  been  delivered  under  conditional  sale 
contract  and  is  destroyed  before  payment  in  full,  the  loss  falls 
upon  the  vendee.    Tufts  v  .Wynn  &  One,  45  Mo.  App.  42. 

Fixtures. 

Where  property  delivered  under  conditional  sale  contract 
has  been  fastened  to  a  building  in  such  a  manner  that  it  may  be 
removed  without  material  injury  to  the  building  or  to  itself,  the 
courts  of  this  state  have  decided  that  the  vendor  is  entitled  to 
possession  of  the  property  where  the  contract  payments  are  not 
made.  In  case  such  property  has  been  so  attached  to  a  building 
as  to  become  a  material  part  thereof,  and  where  same  cannot 
be  removed  without  great  injury  to  the  building  or  to  itself, 
then  such  property  cannot  be  repossessed,  but  it  is  probable 
that  a  lien  for  the  balance  unpaid  can  be  enforced  against  the 
building  by  an  action  in  equity.  Wolf  Co.  v.  Hermann  etc.  Bk., 
168  Mo.  App.  549,  153  S.  W.  1094. 


212  CONDITIONAL  SALES. 

Landlord's   Lien, 

There  is  no  provision  of  law  giving  a  landlord  any  lien  for 
rent  upon  personal  property  located  on  his  premises. 

Notes. 

No  cases  found. 

Election  of  Remedies, 

If  the  vendor  of  g-oods  conditionally  sold  brings  action  for 
a  money  judgment,  he  is  deemed  to  have  waived  his  lien  or 
title  thereby,  and  cannot  afterwards  retake  the  property.  The 
right  of  foreclosure  on  a  common  law  lien  exists  in  this  state 
and  is  a  convenient  method  for  securing  payment  when  the  bal- 
ance is  not  too  great.  Laclede  Power  Co.  v.  Estate  of  Ennis 
etc.  Co.,  79  Mo,  App.  302 ;  Wolf  Co.  v.  Hermann  etc.  Bk.,  168 
Mo.  App.  549,  153  S.  W.  1094. 

Repossession  and  Refund. 

Where  property  sold  under  conditional  contract  is  taken 
possession  of  upon  default,  the  vendor  shall  tender  to  the  ven- 
dee the  amount  received  upon  the  contract  after  deducting  a 
reasonable  sum  for  use  of  the  property,  which  cannot  exceed 
twenty-five  per  cent  of  the  amount  received.  In  addition 
thereto,  if  the  property  is  broken  or  damaged  a  reasonable  al- 
lowance shall  be  made  to  vendor  for  such  injury.  Foreclosure 
eliminates  necessity  for  refund,  Ann.  Statutes,  §  3413.  Gentry 
V.  Templeton,  47  Mo.  App.  55 ;  Wurmser  v.  Sivey,  52  Mo.  App. 
424;  Barnes  v.  Rawlings,  74  Mo.  App.  531  ;  Barnes  v,  Rawlings, 
83  Mo.  App.  185 ;  McArthur  v,  St.  Louis  Piano  Co.,  85  Mo.  App. 
525  ;  Toledo  Computing  Scale  Co,  v.  Aubuchon,  187  Mo.  App. 
687,  173  S.  W.  85 ;  Hart  v.  Emerson-Brantingham  Co.,  203 
Fed.  60. 

Railroad  Equipment. 

Railroad  or  street  railway  equipment  or  rolling  stock  may 
be  delivered  under  conditional  sale  agreement,  or  lease  with  op- 


MISSOURI.  213 

tion  to  purchase ;  but  in  order  to  be  valid  and  hold  title  as 
against  any  subsequent  judgment  creditor,  or  any  subsequent 
bona  fide  purchaser  for  value  without  notice,  the  contract  must 
be  in  writing,  signed  by  all  parties  thereto  and  be  duly  ac- 
knowledged by  vendee,  or  lessee  or  bailee,  or  it  may  be  duly 
proven  by  a  subscribing  witness.  The  contract  shall  then  be 
filed  for  record  with  the  secretary  of  state.  Each  locomotive 
engine  or  car  so  sold,  leased  or  hired  shall  have  the  name  of  the 
vendor,  lessor  or  bailor,  as  the  case  may  be,  plainly  marked  on 
each  side  thereof  followed  by  the  word  "vendor,"  "lessor,"  or 
"bailor"  as  the  case  may  be.  Such  marks  shall  be  effaced  im- 
mediately upon  payment  in  full  and  vendor,  lessor  or  bailor 
shall  be  chargeable  with  a  penalty  of  $5.00  per  day  for  each 
article  until  the  removal  is  made.  Upon  payment  in  full  a 
declaration  to  that  effect  shall  be  recorded  with  the  secretary 
of  state,  and  notation  of  discharge  shall  be  made  upon  the  mar- 
gin of  the  record. 

Fees  to  the  secretary  of  state  are  $25.00  for  recording  an  in- 
strument of  1,000  words  or  less,  and  $1.00  for  each  100  words 
in  excess  of  1,000,  and  he  shall  receive  a  fee  of  $10.00  in  ad- 
dition for  noting  a  discharge  upon  the  record.  Ann.  Statutes, 
§§  1182-1184. 

Forms. 

PROOF  BY  SUBSCRIBING  WITNESS. 

State  of  Missouri,     ) 
County  of  Newton.   ^ 

In  jjerson  before  me,  the  undersigned,  comes  John  Stigler, 
to  me  personally  known  (*)  and  being  by  me  duly  sworn,  says 

*If  witness  is  not  known  to  officer  before  whom  acknowledg- 
ment is  taken,  his  identity  may  be  established  by  the  testimony  of 
two  competent  parties  and  the  phrase  "personally  known"  would 
then  be  replaced  by  the  clause  "proven  by  oath  of  Richard  Fisher 
of  Omaha,  Nebraska,  and  Henry  Smith  of  Farmington,  Missouri, 
to  be  John  Stigler." 


214  CONDITIONAL  SALES. 

he  signed  the  foregoing  instrument  as  a  subscribing  witness 
thereto,  and  the  person  executing  said  instrument  did  sign  and 
deUver  same  as  his  act  and  deed. 

John  Stigler. 


Subscribed  and  sworn  to  before  me 
this  I2th  day  of  July,  1917. 


Marcus  Sherwood, 
Notary  PubHc  in  and  for 


NOTARIAL 
I        SEAL. 

My  commission  expires  on  the day  of 191! 


ACKNOWLEDGMENT  BY  INDIVIDUAL. 

State  of  Missouri,     | 
County  of  St.  Clair,  y^" 

On  this  I2th  day  of  July,  1917,  before  me  personally  ap- 
peared William  O.  Allen,  to  me  personally  known  to  be  the  per- 
son described  in  and  who  executed  the  foregoing  instrument, 
and  acknowledged  that  he  executed  the  same  as  his  free  act  and 
deed. 

In  Witness  Whereof,  I  have  hereunto  set  my  hand  and  af- 
fixed my  official  seal  the  day  and  year  aforesaid. 


notarial  ,  .  „  ^ 

I  Arthur  E.  Lewis, 

Notary  Public  in  and  for 


My  commission  expires  on  the day  of 191? 


MISSOURI.  215 

ACKNOWLEDGMENT  BY  CORPORATION. 

State  of  Missouri,  ) 
County  of  Dent.       C 

On  this  I2th  day  of  July,  1917,  before  me  personally  ap- 
peared Morris  R.  Stone  to  me  personally  known,  who  being 
by  me  duly  sworn  did  say  that  he  is  president  of  Mill  Supply 
Company  and  that  the  seal  affixed  to  the  foregoing  instrument 
is  the  corporate  seal  of  said  corporation,  and  that  said  instru- 
ment was  signed  and  sealed  on  behalf  of  said  corporation,  by 
authority  of  its  board  of  directors,  and  said  Morris  R.  Stone 
acknowledged  said  instrument  to  be  the  free  act  and  deed  of 
said  corporation. 

In  Witness  Whereof,  I  have  hereunto  set  my  hand  and  af- 
fixed my  official  seal  the  day  and  year  aforesaid. 

Herbert  Y.  Lane, 
Notary  Public  in  and  for . 

^  NOTARIAL     ) 
I        SEAL.  ^ 

My  commission  expires  on  the day  of 1918. 


Officers  Before  Whom  Acknowledgments  May  Be  Taken. 

Within  the  State.  Any  judge,  justice  or  clerk  of  a  court  hav- 
ing a  seal ;  any  notary  public ;  any  justice  of  the  peace  in  his 
county. 

Without  the  State  but  Within  the  United  States.  Any  court 
of  the  United  States  or  any  state  or  territorial  court  having  a 
seal ;  a  clerk  of  any  such  court ;  a  commissioner  of  the  state  of 
Missouri ;  a  notary  public. 


2l6  CONDITIONAL  SALES    (MISSOURI), 


MONTANA. 


Legal  Status  of  Conditional  Sale  Contracts. 

Conditional  contracts  of  sale  are  provided  for  by  statute 
law  in  this  state.  Revised  Codes,  §  5092  as  amended  by  laws 
191 1,  page  88.  Supplement  pages  637-8.  State  ex  rel  Malin- 
Yates  Co.  v.  Justice  of  Peace  etc.,  51  Mont.  133,  149  Pac.  709. 

How  Executed. 

They  must  be  in  writing  signed  by  the  vendee  but  do  not 
need  to  be  signed  by  the  vendor,  the  acceptance  of  such  a  con-^ 
tract  on  the  part  of  the  vendor  by  acting  upon  it  or  shipping  the 
goods  being  sufficient  to  make  a  binding  contract  as  between 
the  parties  thereto.  There  is,  however,  no  objection  to  the  con- 
tract being  formally  signed  and  accepted  by  the  vendor.  Miles 
V.  Edsall,  7  Mont.  185,  14  Pac.  701. 

Acknowledgment  or  Proof. 

Such  a  contract  is  valid  as  between  the  parties  thereto  with- 
out acknowledgment  or  proof,  or  filing  or  recording,  but  in  or- 
der to  make  it  valid  and  to  hold  title  as  against  bona  fide  pur- 
chasers, mortgagees  or  attachment  creditors  there  must  be  a 
filing.  It  is  not  necessary  that  the  instrument  be  acknowledged 
by  the  vendee  or  vendor,  nor  that  same  be  signed  or  proven  by 
a  subscribing  witness. 

Recording  or  Filing. 

No  provision  is  made  in  this  state  for  recording  conditional 
sale  contracts.     They  may,  however,  be  filed,  and  in  order  to 

217 


2l8  CONDITIONAL  SALES, 

hold  title  as  against  bona  fide  purchasers,  mortgagees,  or  at- 
tachment creditors,  the  original  contract  duly  signed  by  vendee, 
or  a  copy  thereof  certified  by  the  county  clerk  and  recorder 
must  be  filed  with  the  county  clerk  and  recorder  of  the  county 
wherein  the  property  is  situated.  There  is  no  express  time 
within  which  such  filing  shall  be  made,  but  in  order  to  avoid  all 
question  same  should  be  done  before  vendee  secures  possession 
of  the  property.  Cuerth  v.  Arbogast,  48  Mont.  209,  136  Pac.  383. 


Recording  Fee. 

The  fee  for  filing  such  a  contract  is  fifty  cents.     Revised 
Codes,  §  5093. 


Re-Recording  or  Renewal. 

Such  a  contract  is  valid  for  the  term  of  eight  years.  There 
is  no  provision  for  refiling  or  renewal. 

Discharge. 

Conditional  sale  contracts  must  be  discharged  by  the  ven- 
dor when  the  purchase  price  is  paid  in  full,  and  a  failure  on  his 
part  to  cause  such  discharge  and  satisfaction  within  thirty  days 
after  payment  in  full  is  received,  shall  render  vendor  liable  for 
all  actual  damages  sustained  by  any  person  by  reason  thereof. 
The  satisfaction  may  be  procured  by  a  vendor  appearing  in 
person  before  the  county  clerk  or  recorder  and  requesting  it, 
when  the  fee  would  be  twenty-five  cents.  Where  a  written 
satisfaction  piece  is  filed  the  fees  are  fifty  cents.  Revised  Codes. 
§§  3168,  5093-5094. 

Criminal  Liability  of  Vendee. 

No  provision. 


MONTANA.  219 

Loss,  Who  Must  Bear. 

No  cases  found. 

Fixtures. 

No  cases  found. 

Landlord's  Lien. 

There  is  no  express  provision  of  law  giving  a  landlord  a 
lien  for  rent  upon  personal  property  found  upon  his  premises. 

Notes. 

No  cases  found. 

Election  of  Remedies. 
No  cases  found. 


Repossession  and  Refund. 

A  conditional  sale  vendor  may  not  retake  the  property  in 
question,  credit  a  valuation  thereof  upon  the  contract  and  sue 
for  the  balance.  Retaking  in  this  w^ay  is  a  recision  and  bars  an 
action  for  the  balance  of  the  purchase  price.  Madison  R.  Live 
Stock  Co.  V.  Osier,  39  Mont.  244,  102  Pac.  325. 


Railroad  Equipment. 

Railroad  or  street  railway  equipment  or  rolling  stock  may 
be  delivered  under  conditional  sale  contract  or  lease  with  option 
to  purchase,  but  the  term  thereof  cannot  be  for  a  longer  period 
than  ten  years.  Such  a  contract  must  be  in  writing  signed  by 
all  parties,  and  in  order  that  same  shall  be  valid  as  to  subse- 
quent bona  fide  purchasers  for  value  without  notice,  and  sub- 
sequent judgment  creditors,  same  must  be  acknowledged  by 


220  CONDITIONAL  SALES. 

the  vendee,  lessee  or  bailee,  or  be  duly  proven  in  the  same  man- 
ner as  a  deed  of  real  estate.  It  must  then  be  recorded  w^ith  the 
secretary  of  state,  and  with  the  county  clerk  and  recorder  of  the 
county  in  which  is  located  the  principal  office  or  place  of  busi- 
ness of  the  vendee,  or  lessee,  or  bailee ;  also  in  the  office  of  the 
county  clerk  or  recorder  of  each  county  of  the  state  into  which 
the  railroad  or  street  railway  extends.  Each  locomotive  en- 
gine, or  car,  so  sold,  leased  or  hired,  shall  have  the  name  of  the 
vendor,  lessor  or  bailor,  or  assignee  of  the  same,  plainly  marked 
on  each  side  thereof  followed  by  the  words  "owner"  or  "lessor" 
or  "bailor"  as  the  case  may  be.  Such  contract  must  be  released 
after  payment. 

Fees  to  secretary  of  state  for  recording  contract,  or  dis- 
charge thereof  fifteen  dollars. 

Fees  to  secretary  of  state  for  noting  discharge  on  margin 
of  the  record  one  dollar. 

Fees  to  county  clerk  or  recorder  are  thirty  cents  for  re- 
cording the  first  folio,  and  fifteen  cents  for  each  subsequent 
folio.  Discharge  same  as  for  ordinary  contract.  Revised  Codes, 
§§  3168,  4301-4306. 


NEBRASKA. 


Legal  Status  of  Conditional  Sale  Contracts. 

Conditional  contracts  of  sale  are  provided  for  by  statute 
law  in  this  state.  Revised  Statutes,  191 3,  §  2636.  Cobbey's  Ann. 
Statutes,  1909,  §  6045.  National  Cordage  Co.  v.  Sims,  44  Neb 
148,  62  N.  W.  514;  Osborne  Co.  v.  Piano  Mfg.  Co.,  51  Neb.  502, 
70  N.  W.  1 124;  Regier  v.  Craver  et  al,  54  Neb.  507,  74  N.  W. 
830;  Starr  v.  Dow^  et  al,  'jy  Neb.  172,  108  N.  W.  1065 ;  Bradley 
Co.  V.  Kingman  Co.  et  al,  79  Neb.  144,  112  N.  W.  346;  Racine- 
Sattley  Co.  v.  Hansen  et  al,  84  Neb.  525,  121  N.  W.  573; 
Thomas  v-  Field  Brundage  Co.,  215  Fed.  891. 

How  Executed. 

They  must  be  in  writing  signed  by  the  vendee  but  do  not 
need  to  be  signed  by  the  vendor,  the  acceptance  of  such  a  con- 
tract on  the  part  of  the  vendor  by  acting  upon  it  or  shipping  the 
goods  being  sufficient  to  make  a  binding  contract  as  between 
the  parties  thereto.  There  is,  however,  no  objection  to  the  con- 
tract being  formally  signed  and  accepted  by  the  vendor.  Baker 
V.  Prieve,  59  Neb.  597,  81  N.  W.  609;  McClelland  v.  Scroggin, 
35  Neb.  536,  53  N.  W.  469. 

Acknowledgment  or  Proof. 

Such  a  contract  is  valid  as  between  the  parties  thereto  with- 
out acknowledgment  or  proof,  or  filing  or  recording,  but  in  or- 
der to  hold  title  as  against  any  purchaser  or  judgment  creditor 
of  the  vendee  or  lessee  it  is  necessary  that  the  contract  should 
be  filed.     It  is  not  necessarv  that  the  instrument  should  be  ac- 


221 


222  CONDITIONAL  SALES. 

knowledged  by  the  vendee  or  the  vendor,  nor  that  it  be  signed 
or  proven  by  a  subscribing  witness,  but  the  law  requires  that 
to  the  copy  sent  for  fiHng  shall  be  attadied  an  affidavit  of  the 
vendor,  or  lessor,  or  his  agent,  or  attorney,  containing  the  names 
of  the  vendor  or  lessor,  and  vendee  or  lessee  OR  (so  in  the 
statute)  a  description  of  the  property,  and  the  full  and  true  in- 
terest of  the  vendor  or  lessor  therein.  Revised  Statutes,  1913, 
§  2636.    Cobbey's  Ann.  Statutes,  1909,  §  6045. 


Recording  or  Filing. 

In  order  to  retain  the  vendor's  title  as  against  judgment 
creditors  of,  or  purchasers  without  notice  from,  vendee  or  les- 
see, the  contract  must  be  duly  signed  by  such  vendee  or  lessee 
and  a  copy  thereof,  to  which  the  affidavit  heretofore  described 
has  been  attached,  must  be  filed  in  the  office  of  the  county  clerk 
of  the  county  wherein  the  vendee  resides.  There  is  no  definite 
time  provided  within  which  such  filing  must  be  made,  but  in 
order  to  avoid  all  question  the  filing  should  be  done  before  ven- 
dee secures  possession.  Revised  Statutes,  1913,  §  2636.  Cob- 
bey's Ann.  Statutes,  1909,  §  6045.  McCormick  v.  Stevenson,  13 
Neb.  70,  12  N.  W.  828;  Norton  et  al  v.  Pilger  et  al,  30  Neb.  860, 
47  N.  W.  471  ;  Peterson  v.  Tufts,  34  Neb.  8,  51  N.  W.  297; 
Campbell  Printing  Press  Co.  v.  Dyer,  46  Neb.  830,  65  N.  W. 
904 ;  McCormick  etc.  Co.  v.  Callen,  48  Neb.  849,  67  N.  W.  863 ; 
Racine-Sattley  Co.  v.  Meinen,  79  Neb.  33,  114  N.  W.  602. 

Recording  Fee. 

The  fee  for  filing  such  a  contract  is  twenty-five  cents.  Re- 
vised Statutes,  1913,  §  2637.  Cobbey's  Ann.  Statutes,  1909,  § 
6046. 

Re-Recording  or  Renewal. 

Such  a  contract  must  be  renewed  by  filing  within  thirty 
days  before  the  end  of  five  years  from  date  of  original  contract, 


NEBRASKA.  223 

and  within  thirty  days  before  the  end  of  each  year  thereafter  a 
copy  of  the  contract  in  question  together  with  an  affidavit  of 
the  same  nature  as  that  required  when  the  original  filing  was 
made.  Revised  Statutes,  1913,  §  2636.  Cobbey's  Ann.  Statutes, 
1909,  §  6045.  Crancer  Co.  v.  Cooper,  98  Neb.  153,  152  N.  W. 
304;  Same  case,  160  N.  W.  92. 

Discharge. 

The  courts  have  held  there  is  no  provision  requiring  dis- 
charge of  such  a  contract,  and  that  the  penalty  provided  for 
failure  to  discharge  a  chattel  mortgage  after  payment  does  not 
apply.  It  is  always  advisable,  however,  to  furnish  a  discharge 
to  the  vendee  or  any  other  interested  party  upon  application 
after  payment  in  full.  McCormick  Harvester  Co.  v.  Mills,  64 
Neb.  166,  89  N.  W.  621. 


Criminal  Liability  of  Vendee. 
No  penalty  provided. 

Loss,  Who  Must  Bear. 

Where  property  delivered  under  conditional  sale  agree- 
ment shall  be  destroyed  before  payment  in  full,  the  loss  falls 
upon  the  vendee.  Stickney  Co.  v.  Nicholas,  98  Neb.  287,  152 
N.  W.  554. 

Fixtures. 

When  property  sold  under  conditional  contract  of  sale  has 
been  fastened  to  a  building  in  such  a  manner  that  it  can  be  re- 
moved without  material  injury  to  the  building  or  to  itself,  it 
may  be  removed  by  vendor  if  the  contract  price  is  not  paid. 
Where  the  property  has  become  attached  to  a  building  in  such 
a  manner  as  to  make  it  a  material  part  thereof,  or  so  that  it  can- 
not be  removed  without  great  injury  to  the  building,  or  to  itself, 


224  CONDITIONAL  SALES. 

a  lien  for  the  balance  unpaid  attaches  to  the  building  and  must 
be  enforced  by  an  action  in  equity.  Arlington  Mill  Co.  v. 
Yates,  57  Neb.  286,  'jy  N.  W.  677;  Edwards  etc.  Lumber  Co.  v. 
Rank,  57  Neb.  323,  'jy  N.  W.  765. 


Landlord's  Lien. 

There  is  no  provision  of  law  giving  a  landlord  any  lien  for 
rent  upon  personal  property  located  on  his  premises. 


Notes, 

The  giving  of  notes  under  a  conditional  sale  agreement 
does  not  ordinarily  operate  to  supersede  such  contract.  Care 
should  be  taken,  however,  that  not  too  great  a  portion  of  the 
contract  shall  be  included  in  the  note  or  that  additions  be  made, 
for  under  such  cimcumstances  it  might  become  necessary  to 
file  or  record  same  and  the  notes  would  be  made  non-negotiable, 
Thompson  etc.  v.  Baldwin,  62  Neb.  530,  87  N.  W.  307. 


Election  of  Remedies. 

A  vendor  under  conditional  sale  contract  who  brings  action 
for  a  money  judgment  is  deemed  to  have  waived  his  title  in  the 
property  and  cannot  afterwards  take  possession.  Peoples  Fur- 
niture Co.  V.  Crosby,  57  Neb.  282,  j"]  N.  W.  658 ;  Frederickson 
v.  Schmittroth,  yj  Neb.  722,  112  N.  W.  564;  Mathews  etc.  v. 
Markle,  86  Neb.  123,  124  N.  W.  1129. 

Repossession  and  Refund. 

Where  property  is  retaken  upon  default  of  vendee,  and  one- 
third  of  the  entire  purchase  price  has  been  paid,  then  such  ven- 
dor shall  at  any  time  within  20  days  after  the  taking,  re-deliver 
same  to  vendee  upon  payment  by  vendee  of  the  balance  of  the 
purchase  price ;  together  with  the  reasonable  cost  of  taking  and 
keeping   the    same.      Provided,    if   vendee    shall    in   the   first  in- 


NEBRASKA.  225 

stance  surrender  said  property  to  vendor  without  legal  process, 
no  costs  shall  be  chargeable  to  vendee  upon  the  redemption  of 
said  property.  Upon  refusal  of  a  vendor  to  re-deliver  such 
property  after  payment,  or  tender  of  the  balance  of  the  purchase 
price  thereof  and  costs  if  any,  the  vendee  may  thereupon  re- 
cover from  vendor  all  the  money  paid  in  on  the  contract.  Re- 
vised Statutes,  1913,  §§  545,  546.  Cobbey's  Ann.  Statutes,  1909, 
§§  3919.  3920. 


Railroad  Equipment. 

Any  instrument  for  the  sale,  lease,  or  hiring  of  railroad  or 
street  railway  equipment  or  rolling  stock,  retaining  title  in  the 
seller,  or  lessor  until  paid  for,  shall  not  be  valid  as  against  any 
subsequent  creditor  of  or  bona  fide  purchaser  for  value  and 
without  notice  from,  vendee  or  lessee,  unless  the  contract  be  in 
writing  signed  by  all  parties  thereto,  and  be  duly  acknowledged 
by  vendee,  lessee,  or  bailee  as  the  case  may  be,  or  be  duly 
proven  as  deeds  are  required  to  be  proved.  Each  such  instru- 
ment shall  be  filed  for  record  with  the  secretary  of  state,  and 
each  locomotive,  engine  or  car  so  placed  shall  have  the  name  of 
the  vendor,  lessor  or  bailor,  plainly  marked  on  each  side  thereof 
followed  by  the  word  "owner,"  "lessor"  or  "bailor"  as  the  case 
may  be. 


The  fee  for  recording  is  $15.00. 

The  contract  may  be  discharged  after  performance  by  a 
declaration  in  writing  made  by  the  vendor,  lessor  or  bailor,  or 
his  or  its  assignee.  The  declaration  may  be  made  on  the  mar- 
gin of  the  record,  duly  attested,  or  by  a  separate  instrument 
duly  acknowledged  and  recorded  with  the  secretary  of  state. 

Fees  $15.00  for  recording  such  declaration  of  satisfaction, 
and  $2.00  for  noting  such  declaration  upon  the  margin  of  the 
record.  Revised  Statutes,  1913,  §§  2638,  2639.  Cobbey's  Ann. 
Statutes,  1909,  §§  10678,  10679. 


226  CONDITIONAL  SALES. 

Forms. 

AFFIDAVIT  WHERE  VENDOR  IS  NOT  A 
CORPORATION. 

State  of  Nebraska,  ) 

>  ss.  i 
County  of  Custer.    ^ 

Charles  F.  Simmons,  being  duly  sworn,  says  he  is  the  ven- 
dor or  lessor,  (i)  and  Hermann  Rossea  of  Omaha,  Nebraska, 
the  vendee  or  lessee  of  the  safe  described  in  copy  of  contract 
hereto  attached,  and  the  full  and  true  interest  of  said  vendor 
or  lessor  in  said  safe  is  that  of  owner. 

Charles  F.   Simmons. 

Subscribed  and  sworn  to  before  me 
this  I2th  day  of  July,  1917. 


Warren  P.  Wood, 
Notary  Public  in  and  for 


AFFIDAVIT  WHERE  VENDOR  IS  A  CORPORATION. 

State  of  Nebraska,  / 
County  of  Greeley.   ^ 

E.  Egbert  Carroll,  being  duly  sworn,  says  he  is  attorney 
(2)  for  the  Cary  Safe  Company,  a  corporation;  that  said  Cary 
Safe  Company  is  the  vendor  or  lessor,  that  Harry  Jewell  of 
Omaha,  Nebraska,  is  the  vendee  or  lessee  of  the  safe  described  in 


(i)  Or,  if  such  is  the  case,  "the  agent  or  attorney  for  the 
vendor  or  lessor." 

(2)  Affidavit  may  be  made  and  signed  by  any  duly  au- 
thorized officer  or  agent  of  the  corporation. 


NEBRASKA. 


227 


copy  of  contract  hereto  attached,  and  the  full  and  true  interest 
of  said  vendor  or  lessor  in  said  safe  is  that  of  owner. 


G.  Egbert  Carroll. 


Subscribed  and  sworn  to  before  me 
this  I2th  day  of  Jul}-,  1917. 


George  B.  Clark, 
Notary  Public  in  and  for 


Officers  Before  Whom  Acknozvledgments  May  Be  Taken. 

Within  the  State  and  within  the  jurisdiction  of  the  officer 
acting.  A  judge  or  clerk  of  any  court ;  a  justice  of  the  peace ; 
a  notary  public. 

Without  the  State  hut  JVithin  the  United  States.  Any  com- 
missioner of  deeds  for  the  state  of  Nebraska  or  any  other  officer 
authorized  to  take  acknowledgments ;  but  if  such  acknowl- 
edgments are  taken  without  the  official  seal  of  the  officer  acting, 
then  (but  not  otherwise)  the  authority,  regularity  and  signa- 
ture of  such  officer  must  be  certified  by  the  clerk  of  the  court  of 
record  or  other  certifying  officer  of  the  county,  district  or  state. 


228  CONDITIONAL  SALES   (NEBRASKA). 


NEVADA. 


Legal  Status  of  Conditional  Sale  Contracts. 

There  is  no  provision  of  statute  law  governing  ordinary- 
conditional  sale  contracts,  but  they  are  recognized  by  the 
courts  to  the  fullest  extent.  Cardinal  v.  Edwards,  5  Nev.  36; 
Dillon  &  West  v.  Grutt,  38  Nev.  46,  144  Pac.  741. 


How  Executed. 

They  should  be  in  writing  signed  by  the  vendee  but  do  not 
need  to  be  signed  by  the  vendor,  the  acceptance  of  such  a  con- 
tract on  the  part  of  the  vendor  by  acting  upon  it  or  shipping  the 
goods  being  sufficient  to  make  a  binding  contract  as  between 
the  parties  thereto.  There  is,  however,  no  objection  to  the  con- 
tract being  formally  signed  and  accepted  by  the  vendor. 


Acknowledgment  or  Proof. 

There  is  no  provision  of  law  requiring  such  a  contract  to 
be  either  acknowledged  by  the  vendee  or  vendor,  or  to  be  proven 
by  a  subscribing  witness. 


Recording  or  Filing. 

There  is  no  provision  for  recording  or  filing  such  a  con- 
tract. It  is  valid  as  to  all  parties  without  recording  or  filing 
for  the  term  of  six  years. 


229 


230  CONDITIONAL  SALES. 

Recording  Fee. 
No  provision. 

Re-Recording  or  Renewal, 

No  provision. 

Discharge. 

No  provision. 

Criminal  Liability  of  Vendee. 

No  provision. 

Loss,  Who  Must  Bear. 

No  cases  found. 

Fixtures. 

The  effect  of  fastening  to  a  building  property  sold  under 
conditional  contract  of  sale  has  not  been  judicially  determined. 

Landlord's  Lien. 

There  seems  to  be  no  express  provision  giving  a  landlord 
any  lien  for  rent  on  property  found  on  his  premises. 

Notes. 

No  cases  found. 


NEVADA.  231 


Election  of  Remedies. 


There  has  been  no  court  decision  in  this  state  determining 
whether  or  not  a  vendor  may  bring  action  for  a  money  judg- 
ment on  his  contract  and  if  unable  to  collect  thereafter  replevin 
the  property. 

Repossession  and  Refund. 
No  cases  found. 

Railroad  Equipment. 

Railroad  or  street  railway  equipment,  or  rolling  stock,  may 
be  delivered  under  conditional  sale  contract  or  lease  with  op- 
tion to  purchase;  but  in  order  for  such  a  contract  to  be  valid 
as  against  subsequent  judgment  creditors,  or  subsequent  bona 
fide  purchasers  for  value  and  without  notice,  same  must  be  in 
writing  signed  by  all  parties  thereto ;  acknowledged  by  the 
vendee,  lessee  or  bailee,  or  proven  as  deeds  are  requird  to  be 
proven,  and  filed  for  record  with  the  secretary  of  state.  Each 
car  or  locomotive  engine  so  sold,  leased,  or  hired  shall  have 
the  name  of  the  vendor,  lessor,  or  bailor  plainly  marked  in  let- 
ters not  less  than  one  inch  in  size  on  each  side  thereof  followed 
by  the  word  "owner,"  "lessor,"  or  "bailor"  as  the  case  may  be. 
On  payment  in  full  a  declaration  in  writing  to  that  effect  shall 
be  made  by  the  vendor,  lessor,  or  bailor  or  his  or  its  assignee, 
such  declaration  shall  be  made  by  a  separate  instrument,  to  be 
acknowledged  by  the  vendor,  lessor,  or  bailor  or  his  or  its  as- 
signee, and  recorded  in  the  same  manner  as  the  contract. 

Fees  to  the  secretary  of  state  shall  be  $5.00  for  filing  each 
of  such  contracts  or  declarations,  and  twenty  cents  per  folio 
(100)  w'ords  for  recording  same.  Laws  of  1913,  Chap.  278,  §§ 
I,  2,  3. 


232  CONDITIONAL  SALES    (NEVADa), 


NEW  HAMPSHIRE. 


Legal  Status  of  Conditional  Sale  Contracts. 

Conditional  contracts  of  sale  are  provided  for  by  statute 
law  in  this  state.  Public  Statutes  and  Session  Laws,  Page  448, 
Chap.  140,  §§  23-26.  Nutting  v.  Nutting,  63  N.  H.  221 ;  Baker 
V.  Tolles,  68  N.  H.  yz^  36  Atl.  551 ;  Webber  v.  Osgood,  68  N.  H. 
234,  38  Atl.  730;  Sinclair  v.  Wheeler,  69  N.  H.  538,  45  Atl.  1085  ; 
Cutting  V.  Whittemore,  72  N.  H.  107,  54  Atl.  1098;  Michelson 
V.  Collins,  ^2  N.  H.  554,  58  Atl.  50. 

How  Executed. 

They  must  be  in  writing  signed  by  the  vendee  but  do  not 
need  to  be  signed  by  the  vendor,  the  acceptance  of  such  a  con- 
tract on  the  part  of  the  vendor  by  acting  upon  it  or  shipping  the 
goods  being  sufficient  to  make  a  binding  contract  as  between 
the  parties  thereto.  There  is,  however,  no  objection  to  the  con- 
tract being  formally  signed  and  accepted  by  the  vendor.  Ger- 
rish  &  One  v.  Clark,  64  N.  H.  492,  13  Atl.  870;  Hervey  v. 
Dimond,  67  N.  H.  342,  39  Atl.  331. 

Acknowledgment  or  Proof. 

Such  a  contract  is  valid  as  between  the  parties  thereto  with- 
out filing  or  recording,  and  also  as  to  all  third  parties  where  the 
agreement  is  a  lease  of  household  furniture  containing  an  op- 
tion in  favor  of  lessee  to  purchase  the  same  at  a  time  specified. 
Any  lien  reserved  on  other  property  is,  however,  invalid  as  to 
attachment  creditors,  or  subsequent  purchasers  without  no- 
tice, unless  a  written  memorandum  thereof  signed  by  the  pur- 


233 


234  CONDITIONAL  SALES. 

chaser  is  recorded,  to  which  must  be  attached  the  affidavit  of 
all  parties  setting  forth  the  nature  of  the  transaction.  No  ac- 
knowledgment by  anyone  or  proof  by  subscribing  witness  is 
required.  Public  Statutes  and  Session  Laws,  Page  448,  Chap. 
140,  §§  23-26. 


Recording  or  Filing. 

In  order  to  hold  title  as  against  attachment  creditors  or 
subsequent  purchasers  without  notice,  except  on  household  fur- 
niture where  the  instrument  is  a  lease  containing  an  option  in 
favor  of  the  lessee  to  purchase  the  same  at  a  specified  time,  the 
original  contract  duly  signed  by  the  purchaser,  and  having  at- 
tached thereto  an  affidavit  of  all  parties  to  the  agreement,  must 
be  recorded  within  twenty  days  after  delivery  of  the  property, 
in  the  town  clerk's  office  of  the  town  where  the  purchaser  re- 
sides, if  within  the  state.  If  the  purchaser  is  not  a  resident  of 
the  state  then  it  must  be  recorded  in  the  like  office  of  the  town 
where  the  vendor  resides  if  within  the  state,  or  if  both  are  non- 
residents, then  in  the  like  office  of  the  town  where  the  property 
is  located.  There  is  no  provision  for  signing  or  proof  by  sub- 
scribing witness,  nor  for  acknowledgment  by  the  purchaser  or 
vendor  in  person.  An  affidavit  signed  and  sworn  to  by  the  par- 
ties must,  however,  be  attached.  If  the  purchaser  or  vendor  is 
a  partnership  the  affidavit  may  be  made  by  any  partner.  Where 
the  purchaser  or  vendor  is  a  corporation  the  affidavit  may  be 
made  by  any  director  thereof,  or  by  any  person  authorized  by 
the  corporation  so  to  do.  Public  Statutes  and  Session  Laws, 
Page  446,  §§  6-7,  Page  448,  §§  23-26.  Adams  v.  Lee,  64  N.  H. 
421,  13  Atl.  786;  Batchelder  v.  Sanborn,  66  N.  H.  192,  22  Atl. 
535;  Cleveland  Machine  Works  v.  Lang,  67  N.  H.  348,  31  Atl. 
20;  Dorntee  Casket  Co.  v.  Gunnison,  69  N.  H.  297,  45  Atl.  318; 
Davis  V.  Osgood,  69  N.  H.  427,  44  Atl.  432 ;  Churchill  v.  Dem- 
eritt,  71  N.  H.  no,  51  Atl.  254;  Lamb  v.  King,  73  N.  H.  400, 
62  Atl.  493;  Wood  Piano  Co.  v.  Huckins,  75  N.  H.  611,  78  Atl. 
614. 


NEW  HAMPSHIRE. 


235 


Recording  Fee. 


A  recording  officer  is  entitled  to  receive  as  his  fee  seven- 
teen cents  for  recording  each  page  of  224  words.  Public  Stat- 
utes and  Session  Laws,  Page  861,  Chap.  287,  §  26. 

Re-Recording  or  Renewal. 

The  contract  is  valid  for  the  term  of  six  years.  There  is 
no  provision  for  re-recording  or  renewal. 


Discharge. 

There  is  no  provision  for  discharge  and  no  express  penalty 
for  failure  to  make  such  discharge. 


Criminal  Liability  of  Vendee. 
No  provision. 

Loss,  Who  Must  Bear. 

No  cases  found. 

Fixtures. 

Where  personal  property  held  under  conditional  sale  con- 
tract has  been  fastened  to  a  building  in  such  a  manner  that  it 
may  be  removed  without  material  damage  to  the  building  or  to 
the  property  or  to  both ;  then  same  may  be  taken  away  upon 
default.  On  the  contrary  if  such  property  becomes  firmly  at- 
tached to  a  building  and  is  in  a  legal  sense  an  integral  part 
thereof,  then  no  removal  could  be  had.  Cochran  v.  Flint,  57 
N.  H.  514;  Tibbetts  v.  Home.  65  N.  H.  242,  23  Atl.  145. 

Landlord's  Lien. 

No  provision. 


236  CONDITIONAL  SALES. 

Notes. 

A  note  form  of  contract  may  embody  a  conditional  sale 
agreement,  but  under  the  present  laws  of  New  Hampshire,  the 
same  must  of  necessity  be  recorded.  It  is  always  advisable  to 
sepure  a  written  conditional  sale  contract  and  to  follow  it  with 
an  ordinary  promissory  note  covering  the  deferred  payments. 
Such  a  note  may  refer  to  the  contract  but  should  not  contain 
material  portions  thereof  or  additional  understandings,  for  un- 
der such  circumstances,  the  note  might  require  recording  and 
it  would  also  be  non-negotiable.    Esty  v.  Graham,  46  N.  H.  169. 

Election  of  Remedies. 

No  cases  found. 

Repossession  and  Refund. 

There  seems  to  be  no  requirement  that  any  refund  shall  be 
made  where  the  property  is  taken  possession  of  upon  default. 
Davis  v.  Emery,  11  N.  H.  230;  Partridge  v.  Philbrick,  60  N.  H. 
556;  Kimball  v.  Farnum,  61  N.  H.  348. 

Railroad  Equipment. 

Railroad  or  street  railway  equipment,  or  rolling  stock  may 
be  delivered  under  conditional  sale  contract  or  lease  with  option 
to  purchase,  or  any  agreement  by  which  a  lien  thereon  is  re- 
tained to  secure  the  unpaid  purchase  money.  Provided,  that  no 
such  instrument  shall  be  valid  as  against  any  subsequent  judg- 
ment creditor,  or  any  subsequent  bona  fide  purchaser  for  value 
and  without  notice,  unless  same  be  in  writing  executed  by  all 
parties  thereto,  and  duly  acknowledged  by  the  vendee,  lessee  or 
bailee,  as  the  case  may  be,  or  duly  proved  before  some  person 
authorized  by  law  to  take  acknowledgments  of  deeds,  and  in  the 
same  manner  as  deeds  are  acknowledged  or  proved.  The  in- 
strument must  then  be  recorded  with  the  secretary  of  state. 
Each  locomotive  engine  or  car  so  sold,  leased  or  hired  as  afore- 


NEW  HAMPSHIRE.  237 

said,  shall  have  the  name  of  the  vendor,  lessor  or  bailor,  plainly 
marked  on  each  side  thereof  followed  by  the  word  "owner," 
"lessor"  or  "bailor"  as  the  case  may  be.  When  such  a  contract 
shall  have  been  performed  on  in  full,  a  declaration  to  that  effect 
may  be  made  by  the  vendor,  lessor  or  bailor,  or  his  or  its  as- 
signee, which  declaration  may  be  made  on  the  margin  of  the 
record  of  the  contract,  duly  attested,  or  it  may  be  made  by  a 
separate  instrument,  to  be  acknowledged  by  the  vendor,  lessor 
or  bailor,  or  his  or  its  assignee  and  recorded,  as  aforesaid. 

Fees  to  the  secretary  of  state  for  recording  are  twenty -five 
cents  for  each  224  words.  Public  Statutes  and  Session  Laws, 
Pages  448-49.  Chap.  140,  §§  i,  2,  3.    Supplement  1914,  Page  328. 

Forms. 

AFFIDAVIT    BY  PARTIES. 

We  severally  swear  that  the  foregoing  contract,  or  memor- 
andum, is  made  for  the  purpose  of  witnessing  the  lien  and  the 
sum  due  thereon  as  specified  in  said  memorandum,  and  for  no 
other  purpose  whatever,  and  that  said  lien  and  sum  due  thereon 
were  not  created  for  the  purpose  of  enabling  the  purchaser  to 
execute  said  memorandum,  but  said  lien  is  a  just  lien,  and  the 
sum  said  to  be  due  thereon  is  honestly  due  thereon,  and  owing 
from  the  purchaser  to  the  vendor. 

Samuel   D.    Pond, 
Ervin  Stevens. 

State  of  New  Hampshire,    ) 
County  of  Rockingham.       ^ 

On  this  1 2th  day  of  July,  191 7,  then  personally  appeared 
said  Samuel  D.  Pond  and  Ervin  Stevens  and  each  took  and  sub- 
scribed the  foregoing  oath  before  me. 

Taylor  Pearson, 

Notary  Public  in  and  for . 

I  notarial  ) 
]      seal,       \ 


238  CONDITIONAL  SALES. 

Officers  Before  Whom  Acknowledgments  May  Be  Taken. 

Within  or  Without  the  State  hut  Within  the  United  States. 
A  justice  of  the  peace,  notary  public,  or  a  commissioner. 


NEW  JERSEY. 


Legal  Status  of  Conditional  Sale  Contracts. 

Conditional  contracts  of  sale  are  provided  for  by  statute 
law  in  this  state.  Compiled  Statutes,  Pages  1561-63,  §§  71-73. 
General  Electric  Co.  v.  Transit  Equip.  Co.,  57  N.  J.  E.  460; 
Cooper  V.  Philadelphia  Worsted  Co.,  68  N.  J.  E.  622,  60  Atl. 
352;  Knowles  Loom  Works  v.  Vacher,  57  N.  J.  L.  490,  31  Atl. 
306;  Claflin  Co.  v.  Elliott  Furniture  Co.,  58  N.  J.  L.  379,  34  Atl. 
259;  Woolley  V.  Geneva  Wagon  Co.,  59  N.  J.  L.  278,  35  Atl. 
789;  Palmateer  v.  Robinson,  60  N.  J.  L.  433,  38  Atl.  957;  Lauter 
&  Co.  V.  O'Toole,  -jj  N.  J.  L.  29.  71  Atl.  288;  Lauter  &  Co.  v. 
Isenreath  et  al,  yj  N.  J.  L.  323,  ^2  Atl.  56;  National  Cash  Regis- 
ter Co.  V.  Daly,  80  N.  J.  L.  39,  76  Atl.  325 ;  Hartley  Co.  v.  Lee, 
87  N.  J.  L.  19,^93  Atl.  78. 

How  Executed. 

They  should  be  in  writing  signed  by  the  vendee  but  do  not 
need  to  be  signed  by  the  vendor,  the  acceptance  of  such  a  con- 
tract on  the  part  of  the  vendor  by  acting  upon  it  or  shipping  the 
goods  being  sufficient  to  make  a  binding  contract  as  between 
the  parties  thereto.  There  is,  however,  no  objection  to  the  con- 
tract being  formally  signed  and  accepted  by  the  vendor.  Singer 
Mfg.  Co.  v.  Wolfif  Co.,  70  N.  J.  L.  127,  56  Atl.  147. 

Acknowledgment  or  Proof. 

Such  a  contract  is  valid  as  between  the  parties  thereto 
without  acknowledgment  or  proof,  or  filing  or  recording,  but 
will  be  deemed  absolutely  void  unless  recorded,  as  against  judg- 
ment creditors  of  vendee  without  notice,  and  subsequent  pur- 
chasers from  and  mortgagees  of  vendee  in  good  faith  and  with- 

239 


240  CONDITIONAL  SALES. 

out  notice,  whose  deeds  and  mortgages  shall  have  been  first 
duly  recorded. 

A  subscribing  witness  to  the  vendee's  signature  can  swear 
to  the  execution  of  such  a  contract  so  as  to  entitle  same  to  be 
recorded,  and  the  salesman  who  secures  the  order  for  vendor 
may  act  as  such  subscribing  witness,  provided  he  does  not  also 
execute  the  contract  for  and  on  behalf  of  the  vendor.  The  ven- 
dee if  an  individual,  or  the  members  of  a  partnership  may  ac- 
knowledge such  a  contract  in  person  so  that  it  may  be  recorded ; 
but  a  corporation  vendee's  signature  must  always  be  proven  by 
a  subscribing  witness.  Compiled  Statutes,  Pages  1561-63,  §§ 
71-73,  Page  1540,  §  2oa,  Page  1541,  §  21,  Pages  1542-3-4,  §§  22, 
23,  24,  Page  1573,  §  114.  McAusland  et  al  v.  Rieser  et  al,  82 
N.  J.  E.  614,  90  Atl.  261. 

Recording  or  Filing. 

In  order  to  hold  title  as  against  the  above  named  third  par- 
ties the  original  contract  duly  signed  by  vendee  must  be  re- 
corded. There  is  no  provision  for  filing.  The  law  does  not  pro- 
vide a  definite  time  within  which  same  must  be  recorded,  but  it 
will  be  valid  as  to  judgment  creditors  if  recorded  before  the 
judgment  is  entered,  and  as  to  mortgagees  if  recorded  before 
their  mortgages  are  recorded.  It  is  always  advisable  to  record 
such  a  contract  before  the  vendee  secures  possession  when  no 
question  can  arise. 

The  recording  officer  is  the  clerk  of  the  court  of  common 
pleas,  who  is  also  county  clerk,  of  the  county  wherein  the  ven- 
dee resides,  if  a  resident  of  the  state,  at  the  time  when  such  con- 
tract is  executed,  and  if  not  such  resident  then  with  the  like 
officer  of  the  county  where  the  property  is  located  when  the 
contract  is  executed.  Where  neither  of  these  contingencies  ex- 
ist no  record  is  required.  Compiled  Statutes,  Page  1522,  §  22. 
Behn  v.  National  Bank  of  New  Jersey,  65  N.  J.  L.  591,  48  Atl. 
527;  Smith  V.  Hotel  Ritz  Company,  74  N.  J.  E.  296,  70  Atl.  137; 
Lane  v.  Roach's  Banda  Mexicana  Co.,  78  N.  J.  E.  439,  79  Atl. 


NEW  JERSEY.  24I 

365;  Beall  V.  Hudson  County  Water  Co.,  185  Fed.  179;  In  re: 
O'Brian,  215  Fed.  129;  In  re:  Vandewater  Co.,  219  Fed.  627. 


Recording  Fee. 

The  several  recording  officers  of  this  state  shall  charge  for 
recording  all  deeds,  mortgages,  bills  of  sale,  chattel  mortgages 
and  all  other  documents  at  the  following  rates :  When  written 
in  whole  ten  cents  per  folio  (100  words).  When  written  and 
printed,  or  typewritten  in  whole  or  in  part  with  type  not  less 
than  ten  (10)  point  face  and  with  not  less  than  eight  (8)  point 
space  between  the  lines,  ten  cents  per  folio.  When  printed  or 
typewritten  in  whole  or  in  part  with  type  of  less  than  ten  (10) 
point  face,  with  less  than  eight  (8)  point  space  between  the 
lines,  in  broken  measure,  tabular,  schedule  or  figure  work, 
twenty  cents  per  folio.    Laws  of  1915,  Chap.  177. 


Re-Recording  or  Renewal. 

The  contract  is  valid  for  the  term  of  six  years,  there  is  no 
provision  for  re-recording  or  renewal. 


Discharge. 

When  a  conditional  sale  contract  shall  have  been  paid  in 
full,  then  upon  demand  of  the  vendee  his  assigns  or  legal  rep- 
resentatives, same  must  be  discharged  from  record.  This  may 
be  accomplished  in  either  of  two  ways. 

One  is  to  send  or  present  in  person  to  the  officer  with  whom 
said  contract  has  been  recorded,  the  original  instrument,  and 
upon  it  may  be  written  the  words  "cancelled  by  payment  in 
full,"  signed  by  vendor,  or  a  receipt  in  full  so  signed  may  be  at- 
tached to  such  contract.  No  acknowledgment  or  proof  is  re- 
quired under  such  circumstances. 

The  other  method  is  by  sending  a  certificate  stating  that  the 
debt  has  been  paid  in  full,  also  the  volume  and  page  where  the 


242  CONDITIONAL  SALES. 

record  was  made.  This  instrument  must  be  acknowledged  by 
vendor  or  be  proven  by  a  subscribing  witness,  in  the  same  man- 
ner as  the  original  contract  was  required  to  be  perfected  before 
it  could  be  recorded. 

Fees  to  the  recording  ofificer  in  either  case  are  fifty  cents 
for  making  the  proper  entries. 

No  express  penalty  is  provided  for  failure  to  discharge,  but 
vendee  could  undoubtedly  collect  his  actual  damages.  Com- 
piled Statutes,  Pages  1562-3,  §  73,  Page  1566,  §  84,  Pages 
3416-17,  §§  23,  25.  2y. 

Criminal  Liability  of  Vendee. 

Where  a  vendee  with  intent  to  cheat  or  defraud  the  owner, 
shall  sell,  pledge,  pawn,  or  secrete  personal  property  held  under 
conditional  sale  contract,  such  act  shall  upon  conviction  consti- 
tute a  misdemeanor  punishable  by  a  fine  not  to  exceed  $1,000 
or  by  imprisonment  for  a  term  not  exceeding  three  years,  or  by 
both  such  line  and  imprisonment.  Compiled  Statutes,  Page 
1805,  §  206,  Page  1812,  §  218. 

Loss,  Who  Must  Bear. 

Where  a  soda  fountain  had  been  delivered  under  con- 
ditional sale  contract  but  its  title  was  retained  in  vendor  until 
paid  for  in  full,  the  property  was  destroyed  by  fire  w'hile  a  bal- 
ance remained  unpaid  and  in  a  suit  to  recover  such  amount,  it 
was  held  that  the  vendor  was  entitled  to  recover.  American 
Soda  Fountain  Co.  v.  Vaughn,  69  N.  J.  L.  582,  55  Atl.  54; 
American  S.  F.  Co.  v.  Stolzenbach,  75  N.  J.  L.  721,  68  Atl.  1078. 

Fixtures. 

The  attaching  of  personal  property,  covered  by  a  con- 
ditional sale  contract,  to  a  building,  even  though  done  in  a  most 
permanent  manner  does  not  constitute  same  a  fixture.      Camp- 


NEW  JERSEY.  243 

bell  V.  Roddy  &  One,  44  N.  J.  E.  244,  14  Atl.  279;  General  Elec- 
tric Co.  V.  Transit  Equip.  Co..  57  N.  J.  E.  460,  42  Atl.  loi  ; 
Falaenau  v.  Reliance  Steel  Company,  74  N.  J.  E.  325,  69  Atl. 
1098. 


Landlord's  Lien. 

A  landlord  has  a  lien  for  rent  in  this  state  upon  property 
found  on  his  premises,  but  it  has  been  held  by  the  courts  that 
such  a  lien  does  not  attach  to  the  property  covered  by  condi- 
tional contract  of  sale  until  the  landlord  has  settled  any  unpaid 
balance,  and  this  is  true  whether  the  contract  has  been  recorded 
or  otherwise.  Compiled  Statutes,  Pages  1940-42,  §§  6-9.  Reisch- 
mann  v.  Masker,  69  N.  J.  L.  353,  55  Atl.  301. 


Notes. 

The  giving  of  notes  under  conditional  sale  agreement  is 
only  a  convenient  method  for  evidencing  deferred  payments, 
and  does  not  ordinarily  supersede  such  contract.  Beall  v.  Hud- 
son County  Water  Co.,  185  Fed.  179. 


Election  of  Remedies. 

In  this  state  a  vendor  has  wide  latitude  for  the  securing  of 
a  money  judgment  or  taking  any  other  means  to  collect  his 
debt,  after  which  if  payment  is  not  forthcoming  he  may  retake 
the  property.  This  feature  is  especially  true  if  the  contract  so 
provides.  Campbell  Mfg.  Co.  v.  Rockaway  Pub.  Co.,  56  N.  J. 
L.  676,  29  Atl.  681. 


Repossession  and  Refund. 

There  has  been  no  decision  in  this  state  making  it  necessary 
to  refund  any  portion  of  moneys  received  by  a  vendor.  Hallet 
&  Davis  Piano  Co.  v.  Roe,  85  N.  J.  L.  160,  88  Atl.  624. 


244  CONDITIONAL  SALES. 

Railroad  Equipment. 

A  conditional  contract  of  sale,  or  lease  with  option  to  pur- 
chase covering  railroad  or  street  railway  equipment  and  rolling 
stock,  is  not  valid,  where  possession  has  been  delivered,  as 
against  subsequent  judgment  creditors  or  purchasers  for  value 
without  notice,  unless  same  be  in  writing,  duly  acknowledged 
as  deeds  of  land  are  acknowledged,  and  recorded.  Where  the 
vendee  or  lessee  is  a  corporation  operating  its  road  in  more  than 
one  county  within  the  state,  then  the  record  shall  be  made  with 
the  secretary  of  state.  Where  the  road  is  operated  within  a 
single  county  then  the  record  shall  be  made  with  the  recorder  of 
deeds  for  that  county  only.  Each  locomotive  or  car  so  sold, 
leased  or  loaned  shall  have  the  name  of  the  vendor,  lessor  or 
bailor  or  his  or  its  assignee  plainly  marked  on  both  sides  thereof 
followed  by  the  word  "owner,"  "lessor,"  "bailor"  or  "assignee" 
as  the  case  may  be.  Fees  to  secretary  of  state,  8  cents  per  sheet 
for  recording.    Compiled  Laws,  Page  4254,  §  80,  Page  2278,  §  2. 


Forms. 

ACKNOWLEDGMENT  BY  AN  INDIVIDUAL. 
State  of  New  Jersey, 


ss 
County  of  Hudson. 

On  this  I2th  day  of  July,  1917,  personally  appeared  before 
me,  Victor  Jackson,  a  master  in  chancery  for  the  said  state  and 
county,  Charles  C.  Curtis,  who  I  am  satisfied  is  the  vendee  men- 
tioned in  the  foregoing  instrument,  and  I  having  first  made 
known  to  him  the  contents  therein,  he  acknowledged  that  he 
executed  the  same  for  the  uses  and  purposes  therein  mentioned. 


Victor  Jackson, 
Master  in  Chancery  of  New  Jersey. 


(seal.) 


NEW  JERSEY.  245 

PROOF  BY  SUBSCRIBING  WITNESS  TO  INDIVIDUAL 

SIGNATURE. 

State  of  New  Jersey,    ) 
County  of  Essex.  j 

I,  a  notary  public  in  and  for  said  state  and  county, 
do  hereby  certify  that  on  the  12th  day  of  July,  1917,  in  the 
county  aforesaid,  personally  appeared  Sidney  Fuller  with  whom 
I  am  personally  acquainted  and  whom  I  know  to  be  the  sub- 
scribing witness  to  the  execution  of  the  foregoing  instrument, 
who,  being  duly  sworn  by  me,  did  depose  and  say  that  he  sub- 
scribed his  name  to  the  said  instrument  as  the  subscribing  wit- 
ness on  the  day  that  same  bears  date,  and  that  Thomas  H. 
Gardner  did  sign  and  deliver  the  instrument  as  his  voluntary 
act  and  deed. 

In  Witness  Whereof,  I  have  hereunto  affixed  my  hand  and 
seal  this  12th  day  of  July,  1917. 

Morris  B.  Ernshaw, 
Notary  Public  in  and  for . 

j  NOTARIAL 
]        SEAL. 


PROOF  BY  SECRETARY  OF  CORPORATION  AS  SUB- 
SCRIBING WITNESS. 

State  of  New  Jersey,   | 
County  of  Mercer.        \ 

Be  it  remembered  that  on  the  12th  day  of  July,  1917,  be- 
fore me  a  master  of  the  court  of  chancery  of  the  state  of  New 
Jersey  personally  appeared  Willis  N.  Mead  to  me  known,  who 
being  duly  sworn  according  to  law  on  his  oath  doth  depose  and 
say;  that  he  is  the  secretary  of  Henderson  Mercantile  Com- 
pany, the  corporation  named  in  the  foregoing  contract.  That 
he  is  well  acquainted  with  the  corporate  seal  of  said  corpora- 


246  CONDITIONAL  SALES. 

tion,  that  the  seal  affixed  to  said  contract  is  the  corporate  seal 
of  said  corporation,  that  it  was  so  affixed  by  order  of  said  cor- 
poration ;  that  Henry  J.  Dowd  is  the  president  of  the  said  cor- 
poration ;  that  he  saw  the  said  Henry  J.  Dowd,  as  such  presi- 
dent, sign  the  said  contract  and  heard  him  declare  that  he 
signed,  sealed  and  delivered  the  same  as  the  voluntary  act  and 
deed  of  the  said  Henderson  Mercantile  Company,  by  their  or- 
der; and  that  this  deponent  signed  his  name  thereto  at  the  same 
time  as  a  subscribing  witness. 

Willis  N.  Mead. 
Subscribed  and  sworn  before  me  the  day  and  year  above 
written. 

Newton  D-  Howell, 
Master  in  Chancery  of  New  Jersey. 

(.SEAL.) 


PROOF  BY  WITNESS  WHO  DOES  NOT  SIGN  AS  A 

WITNESS   IN   THE  ACTUAL  PRESENCE   OF 

CORPORATE  OFFICER  WHO  EXECUTES 

THE  CONTRACT. 

State  of  New  Jersey,  ) 

V  ss  ' 
County  of  Mercer.       ^ 

I,  George  N.  Mills,  a  notary  public  in  and  for  Mercer 
county  do  hereby  certify  that  on  the  12th  day  of  July,  1917,  in 
the  county  of  Mercer  aforesaid,  personally  appeared  John  Doe, 
with  whom  I  am  personally  acquainted  and  whom  I  know  to  be 
the  subscribing  witness  to  the  execution  of  the  foregoing  instru- 
ment and  who,  being  duly  sworn  by  me,  did  depose  and  say  that 
he  subscribed  his  name  to  the  foregoing  instrument  as  a  sub- 
scribing witness  on  the  day  that  same  bears  date,  and  being 
well  acquainted  with  the  common  seal  of  said  Acme  Pattern 
Company  knows  that  same  was  and  is  thereto  set,  and  that  the 
said  company  did  then  and  there  sign  and  deliver  the  said  in- 
strument as  its  voluntarv  act  and  deed. 


NEW  JERSEY.  247 

In  Witness  Whereof,  I  have  hereunto  affixed  my  hand  and 
seal  this  12th  day  of  July,  1917. 

George  N.  Mills, 
Notary  Public  in  and  for . 


NOTARIAL    I 
SEAL.         { 


PROOF  BY  WITNESS  WHO  ACTUALLY  SIGNS  AS 

SUCH  IN  THE  PRESENCE  OF  THE  CORPORATE 

OFFICER  WHO  EXECUTES  THE  CONTRACT. 

State  of  New  Jersey,  ) 
County  of  Mercer.       I 

Be  it  remembered  that  on  this  12th  day  of  July  in  the  year 
1917,  before  me,  George  N.  Mills,  a  notary  public  in  and  for 
Mercer  county,  personally  appeared  John  Doe  to  me  known, 
who,  being  by  me  duly  sworn  according  to  law,  doth  depose  and 
make  proof  to  my  satisfaction  that  he  knows  the  corporate  seal 
of  the  Acme  Pattern  Company  named  in  the  foregoing  contract ; 
that  the  seal  affixed  to  said  contract  is  the  proper  corporate  seal 
of  said  Company ;  that  Morton  D.  Hall  was  at  the  time  of  exe- 
cution of  said  contract  the  president  of  said  company  and  that 
said  contract  was  signed,  sealed  and  delivered  by  him  as  such 
president  in  the  presence  of  said  deponent,  as  the  voluntary  act 
and  deed  of  said  company  and  that  said  deponent  thereupon 
subscribed  his  name  as  a  witness  thereto. 

All  of  which  I  certify. 

George  N.  Mills, 
Notary  Public  in  and  for  . 


NOTARIAL 
SEAL. 


248  CONDITIONAL  SALES. 

CERTIFICATE  OF  COUNTY  CLERK. 

State  of  New  York,   ) 
County  of  Kings.        \     " 

I,  Frederick  Lawler,  clerk  of  the  county  of  Kings  and  clerk 
of  the  supreme  court  in  and  for  said  county. 

DO  HEREBY  CERTIFY,  That  the  said  court  is  a  court 
of  record;  that  Harris  B.  McLain  whose  name  is  subscribed  to 
the  certificate  or  proof  of  acknowledgment  of  the  annexed  in- 
strument, was  at  the  time  of  taking  the  same  a  notary  public 
in  and  for  said  Kings  county  duly  commissioned  and  sworn, 
and  qualified  to  act  as  such ;  that  as  such  he  was  at  the  time  of 
taking  such  acknowledgment  duly  authorized  by  the  laws  of 
the  state  of  New  York  to  take  the  acknowledgment  and  proofs 
of  deeds  or  conveyances  for  lands,  tenements  or  hereditaments 
in  said  state  of  New  York ;  that  I  am  well  acquainted  with  the 
handwriting  of  said  Harris  B.  McLain  and  verily  believe  his 
signature  to  the  same  is  genuine. 

In  Testimony  Whereof,  I  have  hereunto  set  my  hand  and 
affixed  the  seal  of  said  court,  at  Brooklyn  in  said  county  of 
Kings,  this  12th  day  of  July  A.  D.  1917. 

Frederick  Lawler, 

Clerk,  etc. 
seal  of 

COURT. 

Officers  Before  Whom  Acknowledgments  May  Be  Taken. 

Within  the  State.  A  chancellor  or  a  justice  of  the  supreme 
court ;  any  attorney-at-law  admitted  to  practice  by  the  supreme 
court;  a  judge  or  clerk  of  the  court  of  common  pleas  in  any 
county;  a  master  in  chancery,  a  notary  public,  a  commissioner 
of  deeds,  a  surrogate,  deputy  surrogate,  or  register  of  deeds; 
a  county  clerk  or  deputy  county  clerk. 

Without  the  State  but  Within  the  United  States.  Any  judge 
of  the  United  States  supreme  circuit  or  district  courts ;  the  chan- 


NEW  JERSEY.  249 

cellor  of  the  state  or  territory  where  taken ;  a  judge  of  the  su- 
preme or  superior  court  of  the  state  where  taken;  the  mayor 
or  chief  magistrate  of  cities  under  the  seal  of  such  cities;  a  mas- 
ter of  cliancery  or  a  commissioner  of  deeds  of  New  Jersey ;  a 
judge  of  any  court  of  common  pleas  or  of  record,  the  official 
character  and  the  authority  of  such  judge  and  the  authenticity 
of  his  signature  to  be  certified  under  the  great  seal  of  the  state 
or  territory  or  under  the  seal  of  the  court  of  the  county  in  which 
the  acknowledgment  is  taken ;  any  officer  authorized  to  take 
acknowledgments  of  deeds^  provided  it  shall  be  accompanied  by 
a  proper  certificate  of  the  acting  official's  signature  and 
authority. 


250  CONDITIONAL  SALES   (nEW  JERSEY ). 


NEW  MEXICO. 


Legal  Status  of  Conditional  Sale  Contracts. 

Conditional  contracts  of  sale  are  provided  for  by  statute 
law  in  this  state.  New  Mexico  Statutes,  Appendix  Pages  io8- 
109,  as  Amended  by  Laws  1917,  Chap.  74.  Crabtree  v.  Segrist 
et  al,  3  N.  Mex.  278,  6  Pac.  202;  Aff'd,  131  U.  S.  287. 


How  Executed. 

They  must  be  in  writing  and  should  be  signed  by  all  par- 
ties thereto. 


Acknowledgment  or  Proof, 

Such  a  contract  is  valid  as  between  the  parties  thereto 
without  acknowledgment  or  proof  or  filing  or  recording,  but  in 
order  to  be  valid  and  hold  title  as  against  subsequent  mortga- 
gees in  good  faith,  purchasers  for  value  without  notice,  and 
subsequent  general  or  judgment  or  attachment  creditors  with- 
out notice,  it  must  be  filed  or  recorded.  Same  must  be  ac- 
knowledged by  the  "owner"  (so  in  statute)  of  the  property  in 
order  to  be  so  filed  or  recorded.  No  determination  has  been 
made  as  to  who  shall  be  considered  the  "owner,"  but  a  fair  in- 
ference leads  to  the  conclusion  that  vendor  may  acknowledge 
the  contract.  It  is  possible,  however,  that  the  courts  may  con- 
strue the  word  "owner"  to  mean  the  vendee,  and  a  safe  rule  to 
follow  would  be  to  have  the  instrument  acknowledged  by  both 
vendor  and  vendee,  when  no  question  could  be  raised. 

251 


252  CONDITIONAL  SALES 

Recording  or  Filing. 

A  conditional  sale  contract  may  be  either  recorded  or  filed 
and  there  appears  to  be  no  advantage  in  recording.  The  officer 
with  whom  such  recording  or  filing  is  made,  must  be  the  county 
clerk  of  the  county  wherein  the  property  covered  is  situate  at 
the  time  when  the  contract  is  executed.  If  situate  in  two  or 
more  counties,  there  must  be  a  filing  or  recording  in  each. 
Where  the  property  in  question  is  not  within  the  state  when 
such  contract  is  executed,  the  statute  does  not  apply  directly; 
but  as  a  measure  of  protection  the  filing  or  recording  should 
take  place  in  the  county  or  counties  where  such  property  is  lo- 
cated after  delivery.  A  copy  may  be  filed.  The  original  must 
be  recorded.  There  is  no  definite  time  set  for  such  action,  but 
same  should  be  done  before  vendee  gets  possession,  if  possible. 
New  Mexico  Statutes,  Appendix,  Pages  108-109  as  Amended 
by  Laws  1917,  Chap.  74;  McBee  v.  O'Connel  et  al,  16  N.  Mex. 
469,  120  Pac.  734;  Vorenberg  Co.  v.  Bosserman,  17  N.  Mex.  433, 
130  Pac.  438. 

Recording  Fee. 

The  fee  for  filing  such  a  contract  is  twenty-five  cents.  Fee 
for  recording  is  one  dollar  and  fifty  cents ;  where  the  descrip- 
tion of  the  property  is  not  more  than  200  words,  and  ten  cents 
for  each  additional  100  words. 

Re-Recording  or  Renewal. 

There  is  no  provision  for  refiling  and  the  contract  is  valid 
for  the  term  of  six  years  from  its  date. 

Discharge. 

When  such  contract  shall  have  been  paid  in  full,  the  ven- 
dor, his  assignee  or  personal  representative,  upon  demand  of 
the  vendee  or  his  successor  in  interest,  shall  acknowledge  a 
satisfaction  piece  and  file  same  if  the  contract  was  filed,  or  re- 


NEW    MEXICO.  253 

cord  same  if  the  contract  was  recorded  in  the  office  or  offices 
where  the  contract  was  filed  or  recorded.  Fees,  the  same  as  for 
filing  or  recording  the  contract. 

Criminal  Liability  of  Vendee. 
No  provision. 

Loss,  Who  Must  Bear. 
No  cases  found. 

Fixtures. 

The  effect  of  attaching  to  a  building  property  held  under 
conditional  contract  of  sale  has  not  been  determined  by  the 
courts  of  this  state. 

Landlord's  Lien. 

A  landlord  has  a  lien  on  the  property  of  his  tenant  for  rent, 
but  as  property  delivered  under  conditional  contract  of  sale  is 
not  the  property  of  the  tenant,  no  lien  for  rent  would  attach 
thereto,  especially  where  the  contract  is  filed  or  recorded  before 
the  said  property  is  moved  upon  the  landlord's  premises. 

Notes. 

The  giving  of  notes  under  conditional  sale  contract  does 
not  ordinarily  supersede  such  contract  and  is  only  a  convenient 
method  of  evidencing  deferred  payments.  If,  however,  too 
great  a  part  of  the  contract  itself  is  included  in  the  notes  they 
may  become  non-negotiable,  and  require  filing  or  recording. 

Election  of  Remedies. 

No  cases  found. 

Repossession  and  Refund. 

No  cases  found. 


254  CONDITIONAL  SALES. 

Railroad  Equipment. 
No  special  statute. 

Forms. 

ACKNOWLEDGMENT  BY  INDIVIDUAL. 

State  of  New  Mexico,  ) 
County  of  Union.  ^ 

On  this  I2th  day  of  July,  1917,  before  me  personally  ap- 
peared Willis  E.  Strong,  to  me  known  to  be  the  person  de- 
scribed in  and  who  executed  the  foregoing  instrument,  and  ac- 
knowledged that  he  executed  the  same  as  his  free  act  and  deed. 

Albert  X.  Ames, 
Notary  Public  in  and  for . 

(notarial  ) 
seal.  ^ 
My  commission  expires 

ACKNOWLEDGMENT  BY  CORPORATION. 

State  of  New  Mexico, 


SS. 

County  of  San  Juan 

On  this  I2th  day  of  July,  1917,  before  me  appeared  Man- 
ley  P.  Green,  to  me  personally  known,  who  being  by  me  duly 
sworn  did  say  that  he  is  the  president  of  Overland  Telephone 
Company,  a  corporation  described  in  the  foregoing  instrument, 
that  the  seal  affixed  to  said  instrument  is  the  corporate  seal  of 
said  corporation,  and  that  said  instrument  was  signed  and 
sealed  in  behalf  of  said  corporation  by  authority  of  its  board 
of  directors,  and  said  Manley  P.  Green  acknowledged  said  in- 
strument to  be  the  free  act  and  deed  of  said  corporation. 

Kent  F.  Mills, 
Notary  Public  in  and  for . 

{notarial  ) 
seal.  j 
My  commission  expires 


NEW    MEXICO.  255 

Officers  Before  Whom  Acknoivledgments  May  Be  Taken. 

Within  the  State.  Clerks  of  district  courts,  clerks  or  judges 
of  probate  courts,  using  the  probate  seal,  a  notary  public,  a 
justice  of  the  peace. 

Without  the  State  but  IVithin  the  United  States.  Clerks  of 
courts  of  record  having  a  seal,  commissioners  of  deeds  for  New 
Mexico,  notaries  public  having  a  seal. 


256  CONDITIONAL  SALES  (nEW  MEXICO). 


NEW  YORK. 


ANALYSIS. 

A.     LEGAL    STATUS     OF    CONDITIONAL     SALE 
CONTRACTS. 

Leviable  Interest  in  Vendee  None. 

Herring  v.  Hoppock,  15  N.  Y.  409. 

Hasbrouck  v.  Lounsbury,  26  N.  Y.  598. 

Cole  V.  Mann,  62  N.  Y.  i. 

Prentiss  Tool  &  Supply  Co.  v.  Schirmer  etc.,  136  N. 

Y.  305. 
Burchell  v.  Green,  6  Misc.  236. 

National  Cash  Register  Co.  v.  Coleman,  85  Hnn.  125, 
Fennikoh  v.  Gunn,  59  A.  D.  132. 
Harris  v.  Gunn,  37  Misc.  796. 


Vendee  Has  No  Leviable  Interest  but  Can  Sell  to  Bona  Fide 
Purchaser. 

Friedman  v.  Phillips,  84  A.  D.  179. 

Powers  V.  Burdick  et  al,  126  A.  D.  179. 

Steiner  v.  National  Cash  Register  Co.,  155  N.  Y.  S.  447. 


Valid  as  to  Vendee's  Assignee. 

Campbell  Prtg.  Press  Mfg.  Co.  v.  Walker,  114  N.  Y.  7. 
Brewer  v.  Ford,  126  N.  Y.  643. 

257 


258  CONDITIONAL  SALES. 

Remedies  of  Vendor  on  Countermand. 

Ackerman  v.  Rubens,  167  N.  Y.  405. 
Marvin  Safe  Co.  v.  Emanuel  et  al,  14  N.  Y.  St.  R.  681. 
Ideal  Cash  Register  Co.  v.  Zunino,  39  Misc.  311. 
Cambridge  Society  v.  Elliot,  50  Misc.  159. 

Innkeeper's  Lien  has  Priority  Where  Contract  not  Filed. 

Waters  &  Co.  v.  Gerard,  189  N.  Y.  302. 
Leonard  v.  Harris,  147  A.  D.  458. 

Valid  as  to  Prior  Mortgagee  of  Real  Estate. 

Washington  Trust  Co.  v.  Morse  Iron  Works,  106  A. 
D.  195. 

Blanket  Contract  for  Future  Deliveries  Invalid. 
Scherl  v.  Flam,  129  A.  D.  561. 

Taking  Chattel  Mortgage  Passes  Title. 

Gaul  V.  Goldburg  etc.  Co.,  85  Misc.  426. 
McMail  V.  Michaels,  147  N.  Y.  S.  516. 

B.     FORM  OF  CONTRACT. 

Oral  Contract  Valid. 

Tompkins  v.  Fonda  Glove  Lining  Co.,  188  N.  Y.  261. 
Alexander  v.  Kellener,  131  A.  D.  809. 
Herbert  v.  Humphreys  et  al,  66  Misc.  150. 


NEW  YORK   (analysis).  259 

Lease  with  Option  to  Purchase  is  Conditional  Sale  Contract. 

Gardner  v.  Town  of  Cameron,  155  A.  D.  750. 

Affirmed,  215  N.  Y.  682. 

Grey  v.  Booth,  64  A.  D.  231. 

Hoffman  v.  White  Sewing  Machine  Co.,  123  A.  D.  166. 

People  ex  rel  Buffalo  Steam  Roller  Co.  v.  Laidlaw, 

155  A.  D.  759. 
Campbell  etc.  v.  Oltrogge,  13  Daly  247. 
Weiss  V.  Leichter,  133  N.  Y.  S.  999. 

Lease  with  Option  in  Separate    Instrument    not    Conditional 
Sale  Contract. 

Cutler  Mail  Chute  Co.  v.  Crawford,  167  A.  D.  246. 

Contract  with  Option  to  Purchase  May  Be  a  Lease. 

Singer  Sewing  Machine   Co.   v.   Independent   ^^^   B. 
Mfg.  Co.,  141  N.  Y.  S.  488. 


C.     HOW  EXECUTED. 


D.     ACKNOWLEDGMENT  OR  PROOF. 


E.     RECORDING  OR  FILING. 

Filing  Where  Property  is  not  Attached  or  to  be  Attached  to  a 
Building. 

Filing  Where  Property  is  Attached  or  to  be  Attached  to  a 
Building. 


26o  CONDITIONAL  SALES. 

When  Filing  Not  Necessary. 

Herring  v.  Hoppock^  15  N.  Y.  409. 
Cole  V.  Mann,  61  N.  Y.  i. 

Prentiss  Tool  &  Supply  Co.  v.  Schirmer  etc.,  136  N. 
Y.  305- 


When  Filing  Necessary. 

Waters  &  Co.  v.  Gerard,  189  N.  Y.  302. 

Must  Be  Filed  Forthwith. 

Karst  V.  Gane  et  al,  136  N.  Y.  316. 
Stephens  v.  Perrine  et  al,  143  N.  Y.  476. 
Stephens  v.  Meriden  et  al,  160  N.  Y.  178. 
Vreeland  v.  Pratt,  42  N.  Y.  St.  R.  582. 
Bullard  v.  Kenyon,  53  N.  Y.  St.  R.  731. 
Seger  &  Gross  Co.  v.  Maclaire,  165  N.  Y.  S.  423. 
Levy  V.  Horn,  153  N.  Y.  S.  913. 

Notice  Obviates  Filing. 

Tompkins  v.  Fonda  Glove  Lining  Co.,  188  N.  Y.  261, 
Rodney,  Hunt  Machine  Co.  v.  Stewart  et  al,  57  Hun. 

545- 

Filing  No  Protection  Where  Vendee  Contractor. 

Milicie  V.  Pearson,  no  A.  D.  770. 
Jacobs  V.  Feinstein,  133  A.  D.  416. 
Albert  v.  Steiner  Mfg.  Co.,  42  Misc.  522. 

Where  no  Delivery  Made,  no  Filing  is  Required. 

Flynn  v.  Badger,  173  A.  D.  71. 


NEW  YORK  (analysis).  261 

Valid  as  to  Trustee  in  Bankruptcy  Without  Filing. 

National  Cash  Register  Co.  v.  Gaul,  38  Misc.  743. 
Creamery  Package  Mfg.  Co.  v.  Horton,  178  A.  D.  767. 
In  re:  Wegman  Piano  Co.,  221  Fed.  128. 
In  re:  Remsen  Mfg.  Co.,  227  Fed.  207, 
Mergenthaler  Linotype  Co.  v.  Hull,  239  Fed.  26. 


F.  FILING  FEE. 

G.  RE-RECORDING  OR  RENEWAL. 

Refiling  Where  Property  is  not  Attached  or  to  be  Attached  to 
a  Building. 

Refiling  Where  Property  is  Attached  or  to  be  Attached  to  a 
Building. 

Refiling  Necessary  as  to  Chattel  Mortgage  Given  After  First 
Year. 

Colwell  Lead  Co.  v.  Home  Title  Insurance  Co.,  154 

A.  D.  83. 
Affirmed,  208  N.  Y.  591. 

Not  Necessary  to  Refile  as  to  Rights  Already  Fixed. 

Breeze  v.  Bayne,  202  N.  Y.  206. 

Astor  Mortgage  Co.  v.  Milton  Construction  Co.,  et  al, 
151  A.  D.  557. 

Refiling  Unnecessary  Where  Parties  Have  Notice. 

Rodney  Hunt  Machine  Co.  v.  Stewart  &  Others,  57 
Hun.  545. 


262  CONDITIONAL  SALES. 

Failure  to  Refile  has  no  Effect  on  Chattel  Mortgage   Given 
During  First  Year. 

American  Box  Machine  Co.  v.  Zentgraf,  45  A.  D.  522. 


Failure  to  Refile  Within  the  Thirty  Day  Period  Makes  the 
Contract  Invalid. 

In  re:  Watts-Woodward  Press,  181  Fed.  71. 


H.     DISCHARGE. 

Discharge  Before  Payment  Where  Property  Attached  or  to  be 
Attached  to  Real  Estate. 


I.     CRIMINAL  LIABILITY  OF  VENDEE. 


Crime  to  Withhold  Property. 

People  V.  Gluck,  188  N.  Y.  167. 
People  V.  Stanton,  79  A.  D.  634. 


J.     PAYMENT,  EXTENSION  AND  TRADE. 

When  Payment  May  be  Made. 

Cushman  v.  Jewell,  7  Hun.  525. 

Effect  of  Extension  and  Removal. 

Gibbons  v.  Luke,  37  Hun.  576. 

Extension  May  be  Granted. 

Cunningham  v.  Hedge,  12  A.  D.  212. 


NEW  YORK  (analysis).  263 

One  Receiving  Conditionally  Sold  Property  in  Trade  is  not 
Bona  Fide  Purchaser. 

In  re:  \^'eonlan  Piano  Co.,  221  Fed.  128. 


K.     LOSS,  WHO  MUST  BEAR. 


Vendor  Loses. 

National  Cash  Register  Co.  v.  South  Bay  C.  H.  Ass'n, 
64  Misc.  125. 


L.     FIXTURES. 

What  is  not  Attached  to  a  Building. 

New  York  Investment  Co.  v.  Cosgrove,  47  A.  D.  35. 

Affirmed,  167  N.  Y.  601. 

Duntz  V.  Granger  Brewing  Co.,  96  A.  D.  631. 

Affirming,  184  N.  Y.  595. 

Davis  V.  Bliss,  187  N.  Y.  yy. 

Fitzgibbons  etc.  v.  Manhasset  etc.,  125  A.  D.  764. 

Reversed,  198  N.  Y.  517. 

Colwell  Lead  Co.  v.  Home  Title  Ins.  Co.,  154  A.  D.  83. 

Affirmed,  208  N.  Y.  591. 

Central  Union  Gas  Co.  v.  Browning.  210  N.  Y.  10. 

Barwin  Realty  Co.  v.  Union  Stove  Works,  146  A.  D. 

319- 
Affirmed,  210  N.  Y.  537. 
Ratchford  v.  Cayuga  Co.  Cold  Storage  etc.  Co.,   159 

A.  D.  525. 
Affirmed,  217  X.  Y.  565. 
Baldinger  v.  Levine,  83  A.  D.  130. 
Kerby  v.  Clapp,  15  A.  D.  37 


264  CONDITIONAL  SALES. 

Prior  Mortgagee  Does  not  Take  Pumps  on  Real  Estate. 

Washington  Trust  Co.  v.  Morse  Iron  Works,  106  A. 

D.  195. 
Astor  Mortgage  Co.  v.   Milton  Construction   Co.,  & 

Others,  151  A.  D.  557. 


A  Mail  Chute  Does  not  Become  Attached  to  a  Building. 

Cutler  Mail  Chute  Co.  v.  Crawford,  167  A.  D.  246. 
Leibowitz  v.  Thomson  R.  E.  Co.,  158  A.  D.  592. 
Foreman  v.  Nordon  Construction  Co.,  167  A.  D.  712, 


Property  not  Accepted  Cannot  Become  Fixture. 

Crocker-Wheeler  Co.  v.  Genesee  Recreation  Co.,  160 
A.  D.  373. 


Trustee  in  Bankruptcy  Does  not  Take  Stoves  in  Apartment 
House. 

In  re:     Cohen,  163  Fed.  444. 


What  is  Attached  to  a  Building. 

Kirk  V.  Crystal,  118  A.  D.  32. 

Affirmed,  193  N.  Y.  622. 

McLean  v.  Griot,  118  A.  D.  100. 

Klein  v.  Cohen,  142  A.  D.  500. 

Shipley  Construction  etc.  Co.  v.  Mager,  165  A.  D.  866. 

York  Mfg.  Co.  v.  Mager,  165  A.  D.  872. 


Property  Sold  to  Contractor  Becomes  Fixture. 

Milicie  v.  Pearson,  no  A.  D.  770. 
Jacobs  V.  Feinstein,  133  A.  D.  416. 
Albert  v.  Steiner  Mfg.  Co.,  42  Misc.  522. 


NEW  YORK  (analysis)  .  265 

M.     LANDLORD'S  LIEN. 

N.     NOTES. 

Notes  are  not  Payment. 

Jagger  Iron  Co.  v.  Walker,  76  N.  Y.  521. 

St.  Albens  Beef  Co.  v.  Aldridge,  112  A.  D.  803. 

Campbell  Printing  Press  &  Mfg.  Co.  v.  Walker,  114 

N.  Y.  7. 
In  re:  W^egman  Piano  Co.,  221  Fed.  128. 

Notes  no  Need  to  Surrender 

Brewer  v.  Ford.  59  Hun.  17. 

Affirmed,  126  N.  Y.  643. 

National  Cash  Register  Co.  v.  Ferguson,  25  Misc.  363. 

In  re:  Rector's,  220  Fed.  645. 

In  re :  Ward,  220  Fed.  645. 

O.  RETAILER. 

Consignment  What  Constitutes  Valid  as  to  Third  Parties. 

Cole  et  al  v.  Mann,  62  N.  Y.  i. 

Childs  &  Co.  V.  Waterloo  Wagon  Co.,  37  A.  D.  242. 

Consignment  Valid  in  New  York  as  Against  Trustee  in  Bank- 
ruptcy. 

In  re:  Wright  Dana  Hdw,  Co.,  211  Fed.  908. 
In  re:  Hamil,  236  Fed.  292. 

Right  to  Change  Character  of  Property  Does  not  Invalidate 
Contract. 

Prentiss  Tool  &  Supply  Co.  v.  Schirmer  etc.,  136  N. 
Y.  305- 


266  CONDITIONAL  SALES. 

Consignment  Valid  Between  Parties  Thereto. 

Weston  V.  Brown,  158  N.  Y.  360. 

Conditional  Sale,  What  Constitutes  Valid  as  to  Third  Parties. 

Powell  V.  Preston,  i  Hun.  513. 
Nash  V.  W^eaver.  25  Hun.  513. 
Fennikoh  v.  Gunn,  59  A.  D.  132. 
Smith  V.  Williams,  90  A.  D.  507. 

Conditional  Sale  Contract  with  Retailer  Invalid  as  to  Third 
Parties. 

Devlin  v.  O'Neill,  6  Daly  305. 
Affirmed,  68  N.  Y.  622. 
Fish  V.  Benedict,  74  N.  Y.  613. 
Ludden  v.  Hazen,  31  Barb.  650. 
Bonesteel  v.  Flack,  41  Barb.  435. 
Cook  V.  Gross,  60  A.  D.  446. 
Scherl  v.  Flam,  129  A.  D.  561. 

Sanitary  Carpet  Cleaner  v.  Reed  Mfg.  Co.,  159  A.  D. 
587.  ' 

Conditional  Sale  Contract  to  Retailer  Void  as  to  Trustee  in 
Bankruptcy. 

In  re:  Howland,  109  Fed.  869. 

In  re:  Garcewich,  115  Fed.  87. 

In  re:  Carpenter,  125  Fed.  831. 

Pontiac  Buggy  Co.  v.  Skinner,  158  Fed.  858. 

P.     ELECTION  OF  REMEDIES. 

Property  Retaken  Amounts  to  an  Election. 

Earl  V.  Robinson,  91  Hun.  363. 
Affirmed.  157  N.  Y.  683. 


NEW  YORK  (analysis).  267 

Vendor  Cannot  Retake  Property  and  Sue  for  Purchase  Price. 

White  V.  Gray's  Sons,  96  A.  D.  154. 
Cooper  V.  Payne,  iii  A.  D.  785. 
See  same  case,  103  A.  D.  118. 
Affirmed,  186  N.  Y.  334. 
Nelson  v.  Gibson,  143  A.  D.  894. 


Retaking  Property  not  Always  Election. 

Equitable  General  Providing  Co.  v.  Potter,  22  Misc. 

124. 
Equitable  General   Providing  Co.  v.   Eisentrager,  34 

Misc.  179. 
National  Cash  Register  Co.  v.  Coleman,  85  Hun.  125. 

Mechanic's  Lien  Filed  is  Election. 

Kirk  V.  Crystal,  193  N.  Y.  622. 
In  re:  Levin,  Kronenberg  &  Co.,  220  Fed.  451. 
In  re :  Automatic  Sprinkler  Co.  of  America,  220  Fed. 
451- 


Judgment  for  Purchase  Price,  and  Mechanic's  Lien  Filed  Con- 
stitute Election. 

Shipley  Construction  etc.  Co.  v.  Mager,  165  A.  D.  866. 


Suit  for  Purchase  Price  is  Election. 

Orcutt  V.  Rickenbrodt,  42  A.  D.  238. 

Pels  V.  Oltarsh  Iron  Works.  129  N.  Y.  S.  371. 


Indorsement  of  Notes  is  an  Election  and  Title  Passes. 
in  re:  Rector's,  220  Fed.  645. 


268  CONDITIONAL  SALES. 

Suit  for  Purchase  Price  not  an  Election. 

Ratchford  v.  Cayuga  Co.  etc.,  217  N.  Y.  565. 
American  Box  Machine  Co.  v.  Zentgraf,  45  A.  D.  522. 
Hobart  Electric  Mfg.  Co.  v.  Rooder,  121  N.  Y.  S.  274. 

May  Foreclose  Common  Law  Lien. 

Singer  Sewing  Machine  Co.  v.  Leipzig  et  al,  113  N. 

Y.  S.  916. 
Simpson  Crawford  Co.  v.  Knight,  130  N.  Y.  S.  236. 
Crump  V.  Wissner,  163  A.  D.  47. 
Bloomingdale  et  al  v.  Braun,  141  N.  Y.  S.  590. 
Pease  Piano  Co.  v.  Fiske,  145  N.  Y.  S.  978. 
Quattrone  v,  Simon,  147  N.  Y.  S.  448. 
Hauss  V.  Savarese,  149  N.  Y.  S.  938. 


Q.     DEFENSES  AND  COUNTERCLAIMS. 

Breach  of  Warranty  is  a  Defense. 

Peuser  v.  Marsh,  167  A.  D.  604. 
Affirmed,  218  N.  Y.  505. 


Purchaser  from  Vendee  must  Pay  in  Full,  or  is  not  Bona  Fide. 

Bowen  v.  Dawley,  116  A.  D.  568. 

Party  Claiming  as  Bona  Fide  Purchaser  has  Burden  of  Proof. 

Cutler  Mail  Chute  Co.  v.  Crawford,  167  A.  D.  246. 
Crocker-Wheeler  Co.  v.  Genesee  Recreation  Co.,  160 
A.  D.  373. 

Infancy  of  Vendee  no  Defense  to  Replevin. 

Wheeler  &  Wilson  Mfg.  Co.  v.  Jacobs,  21   N.  Y.   S. 
1006. 


NEW  YORK  (analysis).  269 

R.     MEASURE  OF  DAMAGES. 
What  Can  be  Collected  on  Countermand. 

Ackerman  v.  Rubens,  167  N.  Y.  405. 
Grey  v.  Booth,  64  A.  D.  231. 

Full  Price  Cannot  be  Collected  Where  no  Delivery. 

National  Cash  Register  Co.  v.  Schmidt,  62  N.  Y.  S. 
952. 

Balance  Unpaid  is  Amount  Recoverable. 

Duntz  V.  Granger  Brewing  Co.,  184  N.  Y.  595. 

Conversion  will  not  Lie  Where  Property  Stolen,  Vendee  is 
Liable  for  Price. 

Sternberg  v.  Schein,  6t,  A.  D,  417. 

S.     REPOSSESSION  AND  REFUND. 

Waiver  in  Original  Contract  not  Valid. 

Roach  V.  Curtis,  191  N.  Y.  387. 
Crowe  V.  Liquid  Carbonic  Co.,  208  N.  Y.  396. 
Hurley  v.  Allman  Gas  Engine  &  Machine  Co.,  144  A. 
D.  300. 

Resale,  How  Conducted. 

Can  Waive  Resale  by  Separate  Agreement. 

Seeley  v.  Prentiss  Tool  &  Supply  Co.,  158  A.  D.  853. 

Affirmed,  216  N.  Y.  687. 

Adler  etc.  v.  Weis  &  Fisher  Co.,  218  N.  Y.  295. 

Fairbanks  v.  Nichols  &  Others,  135  A.  D.  298. 

Leonard  v.  Montague,  155  A.  D.  506. 

Bochen  v.  Multicolor  Sales  Co.  Inc.,  163  N.  Y.  S.  202. 

Cee  Bee  Cee  etc.  Co.  v.  Borenstein,  164  N.  Y.  S.  703. 

Nyboc  V.  Doll  &  Sons,  167  A.  D.  225. 


270  CONDITIONAL  SALES. 

When  Demand  not  Necessary  before  Repossession. 

Gibbons  v.  Luke,  -x,"]  Hun.  576. 

When  Demand  Necessary  before  Repossession, 

Cunningham  v.  Hedge,  12  A.  D.  212. 

When  Vendor  Liable  for  Personal  Injuries  Inflicted  in  Retak- 
ing. 

Feneran  v.  Singer  Mfg.  Co.,  20  A.  D.  574. 

Vendee  can  Recover  Full  Amount  Paid, 

Hoffman  v.  White  Sewing  Machine  Co.,  123  A.  D.  166, 

Vendee  Cannot  Recover  Full  Amount  Paid, 

Rindone  v.  Hamlin's  Inc.,  161  N.  Y.  S.  858. 
Siegel  V.  Rieser,  162  N.  Y.  S,  391, 

Vendee  May  Sell  His  Interest. 

Powers  V.  Burdick  et  al,  126  A.  D.  179. 

Resale  After  Repossession  Must  Follow  Statute. 
Nelson  v.  Gibson,  143  A.  D.  894. 

Action  not  Necessary  to  Repossess, 

Mendelson  et  al  v.  Irving  et  al,  155  A.  D.  114. 

Foreclosure  of  Common  Law  Lien  is  not  Repossession. 

Crump  V.  Wissner,  163  A.  D.  47. 


NEW  YORK  (analysis).  2/1 

Replevin  Gives  Possession  on  Day  of  Judgment  Entered. 

Spitaleri  v.  Brown,  163  A.  D.  644. 
Sigal  V.  Hatch  Co.,  61  Misc.  332. 

Sale  on  Execution  by  Vendor  is  not  Repossession. 

West  Publishing  Co.  v.  Gluck,  92  Misc.  198. 

When  Right  of  Action  will  Lie  for  Refund. 

Date  of  Repossession,  What  is. 

Breakstone  v.  Buffalo  Fdry.  &  Machine  Co.,  167  A.  D. 

62. 
Lowry  v.  Hardman,  Peck  &  Co.,  176  A.  D.  121. 

Can  Collect  Purchase  Price  After  Repossession. 

Equitable  General  Providing  Co,  v.  Potter,  22  Misc. 

124. 
Equitable  General   Providing  Co.  v.   Eisentrager,  34 

Misc.  179. 
National  Cash  Register  Co.  v.  Coleman,  85  Hun.  125. 

When  Vendee  Gives  Chattel  Mortgage  after  Conditional  Sale 
Contract,  no  Refund  is  Payable  after  Repossession. 

Gaul  V.  Goldburg  etc.  Co.,  147  N.  Y.  S.  516. 

Vendee  May  Transfer  Right  to  Refund. 

Steiner  v.  National  Cash  Register  Co.,  155  N.  Y.  S.  447. 

Taking  Property  out  of  State  does  not  Relieve  from  Refund. 

Lanston   Monotype   Machine   Co.   v.  Curtis,  224   Fed. 
403- 


2/2  CONDITIONAL  SALES, 

T.     COMITY. 

U.     RAILROAD  EQUIPMENT. 

What  is  not  Railroad  Equipment. 

In  re:  Ferguson  Contracting  Co.,  183  Fed.  880. 
Ex  parte  Vulcon  Iron  Works,  183  Fed.  880. 

V.     ESTOPPLE. 

Estopple,  What  is. 

Humeston  v.  Cherry,  23  Hun.  141. 


NEW  YORK. 


A.  LEGAL  STATUS  OF  CONDITIONAL  SALE 
CONTRACTS. 

Conditional  contracts  of  sale  are  provided  for  by  statute 
law  in  this  state,  and  they  are  divided  into  three  classes :  Those 
covering  property  attached  or  to  be  attached  to  a  building; 
those  covering  property  not  attached  or  to  be  attached  to  a 
building,  and  those  covering  railroad  equipment.  Consolidated 
Laws,  Vol.  4  Personal  Property  Law,  §§  60-67,  as  amended  by 
Chapters  14  and  455,  Laws  of  1915,  Sup.  Vol.  10,  Consolidated 
Laws,  Pages  529-531- 

Leviable  Interest  in  Vendee  None. 

Where  an  iron  safe  had  been  delivered  in  New  York  under 
conditional  sale  contract  which  was  never  paid  in  full,  judg- 
ments were  secured  against  the  vendee,  by  two  of  its  creditors 
and  the  safe  was  levied  upon  by  the  sheriff.  The  sheriff  was 
notified  of  the  original  vendor's  title  or  lien  upon  the  safe  un- 
der the  contract,  and  he  then  required  an  indemnity  bond  be- 
fore he  would  sell.  This  bond  was  given  and  the  safe  was  sold. 
The  original  vendor  afterwards  brought  action  upon  the  bond 
to  recover  damages. 

Held :  Such  recovery  could  be  had  as  the  vendee  under 
a  conditional  sale  contract  has  no  leviable  interest  in  such  prop- 
erty before  the  purchase  price  has  been  paid  in  full.  There 
was  no  mention  in  this  case  of  the  contract  ever  having  been 
filed  for  record.  (Recording  or  filing,  see  New  York,  E.).  Her- 
ring V.  Hoppock,  15  N.  Y.  409. 

273 


2/4  CONDITIONAL  SALES. 

Where  a  horse  had  been  sold  under  conditional  sale  agree- 
ment and  not  paid  for,  a  creditor  of  the  vendee  secured  a  judg- 
ment and  levied  upon  the  horse,  after  which,  under  such  execu- 
tion, the  horse  was  sold  and  the  judgment  creditor  purchased 
it.  It  then  seems  the  original  vendee  brought  action  against 
such  judgment  creditor  and  purchaser  at  the  sale,  to  recover 
the  value  of  the  horse,  and  secured  a  judgment  therefor  which 
was  paid.  All  these  transactions  took  place  before  the  date 
arrived  upon  which  the  original  vendee  was  to  have  paid  the 
original  vendor  for  the  horse.  Such  payment  not  being  made 
the  original  vendor  sued  the  third  person  who  had  purchased 
at  the  sheriff's  sale,  and  who  had  later  on  paid  the  value  of  the 
horse  to  the  original  vendee,  and  a  judgment  was  recovered 
against  him  for  the  value  of  said  horse  with  costs.  Upon  ap- 
peal it  was  held,  that  he  had  secured  no  right  or  title  in  the  said 
horse,  under  the  execution  and  sale,  nor  by  paying  the  vendee 
and  that  the  original  vendor  could  recover  its  value.  Has- 
brouck  V.  Lounsbury,  26  N.  Y.  598. 

A  conditional  sale  contract  of  property  not  attached  or  to 
be  attached  to  a  building,  is  valid  as  against  general  creditors, 
also  judgment  or  attachment  creditors  of  the  vendee,  and  his 
trustee  in  bankruptcy  without  filing,  for  only  subsequent  pur- 
chasers, pledgees  or  mortgagees  in  good  faith  are  named  by 
the  statute  as  against  whom  it  shall  be  void,  unless  filed.  (Re- 
cording or  filing,  see  New  York,  E.).  (Retailer,  see  New 
York,  O.).     Cole  v.  Mann,  62  N.  Y.  i. 

Machinery  was  sold  and  delivered  in  New  York  under 
conditional  contract  of  sale  and  a  copy  of  such  contract  was 
filed.  Thereafter  a  judgment  was  secured  against  the 
vendee  and  upon  execution  issued,  under  such  judgment,  the 
sherifif  levied  upon  these  machines  which  had  not  been  paid 
for.  The  original  vendor  brought  action  of  conversion  against 
the  sherifif,  and  the  point  was  raised  that  such  contract  had  not 
been  properly  filed,  and  was  therefore  no  notice  to  the  sherifif 
representing  an  execution  creditor. 


NEW  YORK.  275 

Held :  That  no  filing  whatever  of  such  a  contract  was 
necessary  as  against  an  execution  creditor,  or  the  sheriff  who 
had  made  a  levy  under  such  execution.  Along  with  this  ma- 
chinery when  it  was  originally  sold,  under  the  conditional  sale 
contract  was  a  quantity  of  brass.  The  title  to  such  brass  was 
retained  in  the  vendor,  but  vendee  was  given  the  right  to  use 
same  in  its  manufacturing  processes.  The  proceeds  of  such 
manufactured  brass,  when  sold  was  to  be  paid  over  to  the  ven- 
dor, and  it  was  so  paid  before  the  execution  was  levied.  It 
was  held  that  this  right  given  to  manufacture  brass  and  sell  it 
did  not  effect  the  conditional  sale  contract.  Under  all  the  facts 
it  was  held  that  the  original  vendor  could  recover  from  the 
sheriff.  (Recording  or  filing,  see  New  York,  E.).  (Retailer, 
see  New  York,  O.).  Prentiss  Tool  &  Supply  Co.  v.  Schirmer 
etc.,  136  N.  Y.  305,  32  N.  E.  849. 

Where  the  purchaser  of  personal  property  paid  a  part  of 
the  price  and  gave  a  note  for  the  balance,  with  a  clause  therein, 
providing  that  title  to  said  property  should  remain  in  the  seller 
until  paid  for,  and  such  note  was  not  filed ;  the  property  was 
levied  upon  by  a  judgment  creditor  of  the  said  vendee.  In  an 
action  to  recover  same  it  was  held,  the  vendee  had  no  leviable 
interest  in  the  said  propert}-.  lUirchell  v.  Green,  6  Misc.  2t^6, 
Affd.  80  Hun.  602. 

Under  a  conditional  sale  contract  a  cash  register  was  de- 
livered in  New  York.  The  contract  provided  that  upon  de- 
fault in  making  any  payments,  vendor  might  take  possession 
of  and  remove  the  property,  and  the  balance  of  the  purchase 
price  should  at  once  become  due  and  payable.  Upon  default 
vendor  repossessed  the  property  and  sued  vendee  for  the  bal- 
ance unpaid  on  the  purchase  price.  Judgment  was  secured  and 
execution  issued  and  returned  wholly  unsatisfied.  Proceedings 
supplementary  to  execution  were  started  by  the  vendor  and  at 
this  stage  the  vendee,  the  judgment  debtor,  moved  at  special 
term  to  set  aside  a  return  of  the  execution  upon  the  ground  that 
said  vendee  had  a  leviable  interest  in  the  register  which  should 
have  been  levied  u])on  1)\-  the  sheriff.    The  return  of  the  execu- 


276  CONDITIONAL  SALES. 

tion  was  set  aside,  but  upon  appeal  such  order  was  reversed 
upon  the  ground,  that  a  vendee  under  conditional  sale  contract 
has  no  leviable  interest  in  the  property  before  payment  in  full, 
and  it  was  stated  that  as  vendor  still  held  the  register,  the  ac- 
tion brought  to  recover  the  balance  of  the  purchase  price  was 
proper,  it  being  assumed  that  upon  collection  of  such  judg- 
ment the  register  would  be  turned  over  to  the  vendee.  (Elec- 
tion of  Remedies,  see  New  York,  P.).  (Repossession,  see  New 
York,  S.).  National  Cash  Register  Co.  v.  Coleman,  85  Hun. 
125.  32  N.  Y.  S.  593 ;  Same  effect.  Fennikoh  v.  Gunn,  (discussed 
in  New  York,  O.),  59  A.  D.  132;  See,  Harris  v.  Gunn,  37  Misc. 
796,  jj  N.  Y.  S.  20. 


Vendee  Has  no  Leviable  Interest  but  Can  Sell  to  Bona  Fide 
Purchaser. 

Where  a  piano  had  been  sold  under  conditional  sale  con- 
tract retaining  all  title  in  vendor  until  paid  for,  the  vendee 
made  all  payments  promptly,  and  when  she  owed  about  $50.00 
on  a  contract  which  had  been  $225.00  a  judgment  by  another 
creditor  was  secured  against  her  and  execution  issued  upon  it, 
and  the  piano  was  sold  thereunder,  and  purchased  at  such  sale 
by  the  execution  creditor.  The  original  vendor  of  such  piano 
seems  to  have  taken  no  action  against  anyone.  The  vendee, 
evidently  after  the  suit  above  described  had  been  started,  exe- 
cuted a  mortgage  upon  her  interest  in  the  piano  to  a  third  per- 
son, and  later  after  the  sale  of  such  piano  under  execution,  she 
sold  outright  to  the  same  third  person  all  her  rights  in  the  said 
piano.  Thereafter  this  third  person  brought  action  against  the 
party  who  had  purchased  at  the  execution  sale,  such  action  be- 
ing in  conversion  for  the  value  of  the  piano. 

Held :  A  recovery  could  be  had,  as  a  vendee  under  con- 
ditional sale  contract  in  New  York  has  an  interest  which  can 
be  bought,  but  that  such  a  vendee  has  no  interest  in  the  prop- 
erty which  can  be  levied  upon  under  execution.  This  situation 
arising  because  of  the    peculiar    wording    of    the    New    York 


NEW  YORK. 


277 


Statute.  Friedman  v.  Phillips,  84  A.  D.  179,  82  N.  Y.  S.  96; 
Powers  V.  Burdick  et  al  (discussed  in  New  York,  S.),  126  A. 
D.  179;  Steiner  v.  National  Cash  Register  Co.  (discussed  in 
New  York,  S.),  155  N.  Y.  S.  447. 

Valid  as  to  Vendee's  Assignee. 

Campbell  Prtg.  Press  Mfg.  Co.  v.  Walker,  (discussed  in 
New  York,  N.),  114  N.  Y.  7;  Brewer  v.  Ford  (discussed  in 
New  York,  N.),  126  N.  Y.  643. 

Remedies  of  Vendor  on  Countermand. 

The  owner  of  a  yacht  in  New  York  City  sold  it  under  con- 
ditional sale  agreement  for  a  stated  sum.  Vendee  refused  to 
complete  his  purchase  and  never  took  possession  of  the  prop- 
erty. Vendor  thereafter  notified  him  to  the  effect  that  the  con- 
tract as  made  would  be  enforced ;  that  he  would  hold  the  yacht 
for  the  vendee,  and  would  attempt  to  sell  it  for  the  most  favor- 
able price  that  could  be  secured,  and  if  this  price  did  not  clear 
the  contract  price,  would  hold  him  for  the  deficiency.  The 
yacht  was  advertised  for  two  months  each  Sunday  in  a  paper 
published  in  New  York,  but  no  sale  was  secured.  Therefore 
said  yacht  was  placed  in  the  hands  of  a  licensed  auctioneer  to 
be  sold,  which  said  auctioneer  advertised  the  sale  of  it  (it  does 
not  state  in  what  manner).  A  place  was  stated  at  which  pros- 
pective buyers  could  see  the  yacht,  and  a  time  and  place  was 
set,  complying  with  such  notice,  when  the  yacht  was  sold  to 
the  original  vendor,  after  there  had  been  other  bids  by  a 
stranger.  The  amount  received  was  slightly  less  than  one-half 
the  original  contract  price,  from  which  was  deducted  the  ex- 
penses of  advertising  and  sale,  including  the  auctioneer's  fee. 
Vendor  then  sued  vendee  to  recover  the  difiference  between 
this  balance  and  the  contract  price.  These  rules  were  laid 
down.  When  the  vendee  of  personal  property  under  an  execu- 
tory contract  of  sale  refuses  to  complete  his  purchase,  the  ven- 
dor may  keep  the'articles  for  him  and  sue  for  the  entire  pur- 


278  CONDITIONAL  SALES. 

chase  price,  or  he  may  keep  the  property  as  his  own,  and  sue 
for  the  difiference  between  the  market  value  and  the  contract 
price,  or  he  may  sell  the  property  for  the  highest  sum  he  can 
get,  and  after  crediting  the  net  amount  received,  sue  for  the 
balance  of  the  purchase  money.  It  was  held  in  this  instance, 
that  the  vendor  was  entitled  to  recover  the  amount  for  which 
he  had  sued.  There  was  a  dissenting  opinion  by  Mr.  Justice 
Haight,  upon  the  ground  that  the  vendor  could  not  sell  to  him- 
self at  an  auction  so  conducted,  but  the  prevailing  opinion  ex- 
pressly declared  that  such  a  method  of  sale  is  permissable, 
especially  where  the  amount  bid  is  reasonable,  considering  the 
value  of  the  property,  and  there  has  been  no  fraud  or  collusion 
in  the  proceeding.  (Measure  of  Damages,  see  New  York,  R.)- 
Ackerman  v.  Rubens,  167  N.  Y.  405,  67  N.  E.  750. 

Where  an  iron  safe  had  been  contracted  for  on  the  basis 
that  title  thereto  should  not  pass  until  said  safe  was  paid  for  in 
full,  and  the  payments  were  to  be  made  in  installments;  the 
vendee  refused  to  accept  delivery  and  vendor  sued  for  the  full 
purchase  price,  which  it  was  permitted  to  recover.  Marvin 
Safe  Co.  V.  Emanuel  et  al.  14  N.  Y.  St.  R.  681,  21  Abb.  N.  C. 
181. 

.  A  conditional  sale  contract  for  two  cash  registers  was  made 
in  New  York,  and  they  were  thereafter  tendered  to  the  vendee 
who  refused  to  accept  and  pay  for  same.  Vendor  then  kept 
the  registers  in  its  possession  being  ready  at  all  times  to  make 
delivery,  and  sued  vendee  for  the  full  purchase  price. 

Held  :  Recovery  could  be  had.  The  rule  was  stated.  The 
vendor  of  personal  property  has  three  remedies  against  the 
vendee  in  default,  where  there  has  been  neither  delivery  nor 
acceptance.  He  may  store  the  property  for  the  buyer 
and  sue  for  the  purchase  price ;  or  may  sell  the  property  as 
agent  for  the  vendee  and  recover  the  difiference  resulting ;  or 
may  keep  the  property  as  his  own  and  recover  the  difference  be- 
tween the  value  of  said  property  and  the  contract  price  at  the 
time  and  place  of  delivery  tendered.  Ideal  Cash  Register  Co. 
V.  Zunino,  39  Misc.  311,  79  N.  Y.  S.  504. 


NEW  YORK.  279 

A  person  who  agrees  to  buy  personal  property  and  pay  for 
it  in  installments,  title  to  remain  in  the  vendor  until  full  pay- 
ment made,  can  be  sued  for  the  purchase  price  when  he  at- 
tempts to  cancel  the  order  and  refuses  to  accept  the  property 
when  tendered.  Cambridge  Society  v.  Elliot,  50  Misc.  159,  98 
N.  Y.  S.  232. 


Innkeeper's  Lien  has  Priority  Where  Contract  Not  Filed. 

An  individual  became  a  guest  at  a  hotel  in  New  York  City 
and  stayed  there  for  a  period,  under  the  usual  conditions  sur- 
rounding a  guest  at  a  hotel.  She  had  a  room  in  the  hotel  and 
took  meals  there.  Under  this  arrangement  an  amount  of 
money  accrued  from  the  guest  to  the  hotel.  Thereafter  this 
guest  hired  a  suite  of  rooms  in  the  same  hotel  and  made  a  writ- 
ten lease  with  the  proprietor  for  such  rooms.  The  tenant  also 
took  meals  in  the  hotel  and  under  this  arrangement  a  consider- 
able amount  of  money  became  due  from  the  lessee  to  the  hotel 
keeper.  A  few  days  prior  to  the  time  when  the  lease  was  made 
for  an  apartment  in  the  hotel,  and  while  the  individual  was 
staying  there  as  an  ordinary  guest,  a  firm  dealing  in  pianos 
having  made  a  conditional  sale  contract  with  this  guest  for  a 
piano,  deli\ered  such  instrument  at  the  hotel,  and  it  was  placed 
in  the  vendee's  room,  and  it  was  afterward  used  in  the  apart- 
ment which  had  been  leased  as  above  described.  There  is  no 
mention  made  that  this  conditional  sale  contract  was  ever  filed. 
Vendee  defaulted  on  the  payments  and  vendor  sought  to  take 
possession,  but  was  resisted  by  the  hotel  keeper,  after  which 
action  was  brought  by  such  vendor  against  the  hotel  keeper  to 
determine  which  had  the  prior  right.  Under  these  facts  it  was 
held  the  hotel  keeper  had  a  lien  on  this  piano  which  was  prior 
to  that  of  the  conditional  sale  vendor  under  its  contract,  and 
could  hold  same  in  payment  of  its  debt.  (Recording  or  Filing, 
see  New  York,  E.).  Waters  Sz  Co.  v.  Gerard,  189  N.  Y.  302,  82 
N.  E.  143.  See  also.  Leonard  v,  Harris,  147  A.  D.  458,  131  N. 
Y.  S.  909. 


280  CONDITIONAL  SALES. 

Valid  as  to  Prior  Mortgagee  of  Real  Estate. 

A  real  estate  mortgage  was  placed  upon  property  consist- 
ing of  buildings,  wharves,  dry  docks,  etc.,  with  their  contents. 
This  mortgage  further  provided  that  it  should  cover  all  after 
acquired  property  of  the  mortgagor  which  was  placed  upon  the 
premises  thus  mortgaged.  With  such  real  estate  mortgage  in 
existence  a  firm  contracted  under  conditional  sale  agreement 
with  the  mortgagor.  Such  firm  promised  to  furnish  pumping 
machinery  amounting  to  a  large  sum,  title  to  same  was  retained 
in  the  vendor  until  paid  for.  This  machinery  was  never  paid 
for  and  after  a  considerable  period  of  default  a  supplementary 
conditional  sale  contract  was  made  extending  the  time  of  pay- 
ments and  notes  were  given  thereunder  which  were  never  paid. 
The  real  estate  mortgagee  brought  foreclosure  under  his  mort- 
gage and  the  entire  property  was  directed  to  be  sold,  free  of  all 
liens.  It  was  further  directed  that  the  conditional  sale  vendee 
of  the  pumping  machinery  should  be  paid  in  full  before  the 
mortgage  debt  on  the  real  estate  mortgage  was  paid.  This  part 
of  the  judgment  was  appealed  from,  but  same  was  affirmed, 
under  the  theory  that  the  pumping  plant  was  an  essential  part 
of  a  dry  dock  system  which  existed  on  this  property,  that  it  had 
long  been  in  use  there,  and  the  vendor  of  such  machinery  was 
not  obliged  to  either  take  the  pumps  back,  after  they  had  been 
so  extensively  used,  nor  should  he  be  relegated  to  the  remedy 
of  suing  an  insolvent  vendee  for  the  balance  of  the  purchase 
price.  In  other  words  it  was  held,  that  the  rights  of  a  con- 
ditional sale  vendor  in  this  instance,  were  ahead  of  the  rights 
of  a  prior  mortgagee  of  real  estate,  upon  which  real  estate  the 
personal  property  covered  by  the  conditional  sale  contract  had 
been  placed.  (Fixtures,  see  New  York,  L.).  Washington  Trust 
Co.  V.  Morse  Iron  Works,  io6  A.  D.  195,  94  N.  Y.  S.  495- 


Blanket  Contract  for  Future  Deliveries  Invalid. 

Scherl  v.  Flam  (discussed  in  New  York,  O.),  129  A.  D.  561. 


NEW  YORK.  281 

Taking  Chattel  Mortgage  Passes  Title. 

Where  vendor  takes  a  chattel  mortgage  following  a  con- 
ditional sale  contract  the  title  has  passed  to  vendee,  and  upon 
default  and  repossession  no  sale  as  provided  by  Section  65  of 
the  Personal  Property  Law  is  required.  (Repossession  and 
Refund,  see  New  York,  S.).  Gaul  v.  Goldburg  etc.  Co.,  85 
Misc.  426,  147  N.  Y.  S.  516;  Same  effect,  McMail  v.  Michaels, 
147  N.  Y.  S.  516. 


B.     FORM  OF  CONTRACT. 

Where  the  intent  as  derived  from  the  whole  instrument  is 
to  make  a  sale,  then  no  matter  if  the  agreement  shall  be  called 
a  lease  or  bailment,  the  law  will  construe  it  a  conditional  sale 
contract.  An  actual  lease  of  personal  property  will,  however, 
be  upheld. 


Oral  Contract  Valid. 

Where  a  quantity  of  machinery  had  been  delivered  under 
an  oral  contract  of  conditional  sale,  providing  that  title  thereto 
should  remain  in  the  vendor  until  paid  for  in  full ;  the  terms  of 
payment  were  never  complied  with,  and  of  course  no  copy 
of  the  contract  was  ever  filed.  Later  on  this  machinery  was 
sold  by  the  vendee  to  another  firm,  and  this  firm  subsequently 
sold  it  to  a  third.  The  original  vendor  brought  action  against 
this  third  firm  to  recover  the  value  of  such  machinery,  being 
an  action  in  conversion.  It  was  shown  that  both  the  first  pur- 
chaser from  the  vendee,  and  the  firm  that  purchased  after- 
wards had  knowledge  of  the  conditional  sale  contract.  Under 
such  circumstances  it  was  held  that  such  knowledge  had  the 
same  effect  as  though  the  contract  had  been  in  writing  and 
properly  filed,  and  that  the  original  vendor  could  recover. 
(Recording  or  Filing,  see  New  York,  E.).  Tompkins  v.  Fonda 
Glove  Lining  Co.,  188  N.  Y.  261,  80  N.  E.  933. 


282  CONDITIONAL  SALES. 

Where  household  furniture  had  been  deHvered  in  New 
York  under  an  oral  conditional  sale  contract,  and  where  the 
vendee  had  defaulted  and  the  property  had  been  taken  back,  it 
was  not  held  30  days  by  the  vendor,  as  provided  by  New  York 
law.  and  then  sold  at  public  auction  after  givinj^  the  proper 
notice.  Vendee  brought  action  to  recover  all  the  money  which 
had  been  paid  and  was  non-suited  at  the  trial  evidently  upon  the 
ground  that  the  contract  in  question  was  oral  and  therefore 
had  no  legality.  The  case  was  appealed  and  this  judgment 
was  reversed,  it  being  expressly  stated  that  an  oral  conditional 
sale  agreement,  is  valid  in  the  State  of  New  York,  so  far  as  it 
can  be  relied  upon  without  having  to  be  filed.  Alexander  v. 
Kellener,  131  A.  D.  809,  116  N.  Y.  S.  98;  Same  effect,  Herbert 
V.  Humphreys  et  al,  66  Misc.  150,  121  N.  Y.  S.  235. 


Lease  with  Option  to  Purchase  is  Conditional  Sale  Contract. 

A  steam  road  roller  was  delivered  under  written  contract 
providing  for  the  payment  of  rent  at  $10.00  per  day  for  at  least 
64  days  each  year  for  five  years,  after  which  time  by  paymg 
$1.00  additional  and  exercising  an  option  to  have  the  rent  pay- 
ments applied  on  the  purchase  price  ;  the  roller  could  be  bought 
by  the  lessee.  There  was  provision  that  the  term  of  renting 
might  be  ended  each  year  by  giving  certain  notice,  but  unless 
such  notice  was  given,  which  it  was  not,  the  term  continued. 
This  contract  was  made  with  town  officials  and  in  a  taxpayers' 
action  to  determine  its  legality,  was  declared  a  conditional 
contract  of  sale  and  not  a  lease.  Gardner  v.  Town  of  Cameron, 
155  A.  D.  750,  140  N.  Y.  S.  634;  Affirmed,  215  N.  Y.  682.  Same 
efifect.  Grey  v.  Booth  (discussed  in  New  York,  R.),  64  A.  D. 
231  ;  HoiTman  v.  White  Sewing  Machine  Co.  (discussed  in 
New  York,  S.),  123  A.  D.  166;  People  ex  rel  Buffalo  Steam 
Roller  Co.  v.  Laidlaw,  155  A.  D.  759,  140  N.  Y.  S.  641. 

Where  a  printing  press  had  been  leased  to  an  individual 
who  was  to  pay  rent  and  have  such  rent  applied  upon  the  pur- 
chase price  later  on,  the  press  was  delivered  and  a  part  of  the 


NEW  YORK.  283 

rent  paid.  The  contract  was  not  filed.  The  press  was  sold  by 
the  so  called  lessee,  to  a  bona  fide  purchaser  for  value  and  the 
original  owner  brought  replevin  against  such  third  party  for 
possession. 

Held :  The  contract  was  one  of  conditional  sale  and  as  it 
had  not  been  filed  was  no  protection  as  against  a  bona  fide  pur- 
chaser from  the  vendee.  The  replevin  action  was  dismissed. 
Campbell  etc.  v.  Oltrogge,  13  Daly  247. 

A  contract  concerning  personal  property  which  provides 
for  the  payment  of  rent  with  an  option  to  purchase  later,  and 
have  the  rent  payments  applied  on  the  purchase  price,  is  a 
conditional  sale  contract  and  not  a  lease.  Weiss  v.  Leichter, 
113  N.  Y.  S.  999. 

Lease  with  Option  in  Separate  Instrument  not  Conditional 
Sale  Contract. 

In  a  suit  for  possession  of  personal  property  the  following 
facts  appeared.  The  owner  of  a  building  in  New  York  City 
contracted  by  pure  lease  for  a  mail  chute  to  be  placed  in  such 
building,  and  it  was  so  ])laced  that  same  could  be  removed 
without  material  damage  to  the  chute  or  to  the  building.  By  a 
separate  instrument  executed  between  the  same  parties  on  the 
same  date,  an  option  to  purchase  was  given,  and  to  have  the 
rent  already  paid  applied  upon  the  purchase  price.  Neither  of 
these  instruments  were  filed  or  recorded.  The  building  was 
sold  and  conveyed  as  a  whole  after  which  the  suit  in  question 
was  brought. 

Held:  The  chute  had  not  become  attached  to  real  estate 
and  did  not  ])ass  under  the  real  estate  conveyance,  that  the 
present  owner  of  the  building  had  not  shown  himself  to  be  a 
bona  fide  purchaser  thereof,  and  the  judgment  which  had  been 
for  the  defendant  in  the  trial  court  was  reversed.  The  forms 
of  contract  used  were  discussed  and  it  was  intimated  that  the 
lease  as  given  was  valid  as  such,  and  the  option  did  not  con- 
vert it  into  a  conditional  sale  contract.     (Fi.xture,  see   New 


284  CONDITIONAL  SALES. 

York,  L.).     (Defenses  and  Counterclaims,  see  New  York,  Q.). 
Cutler  Mail  Chute  Co.  v.  Crawford,  167  A.  D.  246,  152  N.  Y.  S. 

750. 

Contract  with  Option  to  Purchase  May  Be  a  Lease. 

Four  sewing  machines  were  delivered  in  New  York  City 
under  a  contract  (see  full  text  in  opinion),  which  provided  for 
the  payment  of  rent,  and  gave  the  lessee  an  option  to  have  such 
rent  applied  later  on  the  purchase  price.  After  several  pay- 
ments were  made  by  the  lessee,  he  defaulted,  and  lessor  sued 
to  recover  the  value  of  the  machines  as  for  goods  sold  and  de- 
livered. The  amount  claimed  was  exactly  the  balance  of  rent 
under  the  aforesaid  contract.  At  the  trial  plaintiff  recovered, 
but  upon  appeal  the  instrument  was  denominated  a  lease,  and 
the  judgment  reversed  for  the  court  said  this  contract  is  a 
lease,  and  under  it  the  purchase  price  cannot  be  collected. 
Singer  Sewing  Machine  Co.  v.  Independent  W.  B.  Mfg.  Co., 
141  N.  Y.  S.  488. 


C.     HOW  EXECUTED. 

They  should  be  in  writing  signed  by  the  vendee,  but  do  not 
need  to  be  signed  by  the  vendor.  The  acceptance  of  such  a 
contract  on  the  part  of  the  vendor  by  actnig  upon  it,  or  ship- 
ping the  goods,  being  sufficient  to  make  a  binding  contract  as 
between  the  parties  thereto.  There  is,  however,  no  objection 
to  the  contract  being  formally  signed  and  accepted  by  the 
vendor. 


D.    ACKNOWLEDGMENT  OR  PROOF. 

Such  a  contract  is  valid  as  between  the  parties  thereto 
without  acknowledgment  or  proof,  or  filing  or  recording,  but 
in  order  to  make  it  valid  and  to  hold  title  as  asrainst  certain 


NEW  YORK.  285 

named  third  parties,  the  original  or  a  copy  of  same  must  be 
filed.  It  is  not  necessary  that  the  instrument  be  acknowledged 
by  the  vendee  or  vendor,  nor  that  it  be  signed  or  proven  by  a 
subscribing  witness  in  order  to  be  so  filed.  (Exception  as  to 
Railroad  Equipment), 


E.    RECORDING  OR  FILING. 

In  order  to  hold  title  as  against  certain  named  third  parties, 
a  contract  of  conditional  sale  must  be  filed  as  hereinafter 
stated.     There  is  no  provision  for  recording. 

Filing  Where  Property  is  not  Attached  or  to  be  Attached  to  a 
Building. 

Where  property  sold  under  conditional  sale  contract  is 
not  supplied  for  a  building  and  attached  or  to  be  attached 
thereto,  a  copy  of  the  contract  should  be  filed  in  order  to  retain 
title  in  the  vendor  as  against  subsequent  purchasers,  pledgees 
or  mortgagees  in  good  faith.  The  time  when  such  filing 
should  be  made  is  not  fixed  by  statute,  but  from  court  inter- 
pretations upon  the  subject,  it  seems  safe  to  advise  that  such 
action  should  be  taken  forthwith  after  the  contract  actually  be- 
comes binding  upon  the  parties.  Where  a  formal  contract  is 
entered  into  and  duly  signed  by  all  parties,  a  copy  of  the  in- 
strument should  be  made  the  same  day,  if  possible,  and  mailed 
to  the  proper  filing  officer. 

Where  an  order  is  secured  from  vendee  which  must  be 
submitted  to  the  vendor  for  acceptance,  there  is  no  contract  ex- 
isting until  such  acceptance  is  made,  but  when  that  action  has 
been  taken  by  vendor,  a  copy  of  the  completed  contract  should 
be  sent  for  filing  with  all  due  diligence.  If  a  delay  of  more 
than  a  day  or  two  intervenes,  a  satisfactory  explanation  would 
of  necessity  have  to  be  made,  and  where  a  week  or  more 
elapses  from  the  time  when  the  order  actually  became  binding 


286  CONDITIONAL  SALES. 

upon  the  parties  without  its  having  been  filed ;  the  vendor  is  in 
danger  of  being  superseded. 

The  filing  should  be  made  with  the  clerk  of  the  town  or 
city  where  the  vendee  resides  at  the  time  of  the  execution 
thereof  if  a  resident  of  the  state,  and  if  he  is  not  such  resident, 
then  with  the  clerk  of  the  town  or  city  where  such  property  is 
located  at  the  time  of  the  execution  thereof.  If  there  be  more 
than  one  vendee  residing  within  the  state,  a  certified  copy  of 
the  contract  must  be  filed  with  the  clerk  of  the  town  or  city 
where  each  such  vendee  resides  at  the  time  of  the  execution 
thereof. 


EXCEPT: 

1.  Where  said  town  or  city,  outside  of  New  York  City, 
contains  the  office  of  the  county  clerk  the  contract  must  be  filed 
in  his  office.     (Town  is  used  with  the  meaning  of  township). 

2.  In  New  York  City  the  filing  is  made : 

In  the  Borough  of  Brooklyn,  in  the  office  of  the  register 
of  the  County  of  Kings. 

In  the  Borough  of  Queens  in  the  office  of  the  clerk  of 
Queens  County. 

In  the  Borough  of  Richmond  in  the  office  of  the  clerk  of 
Richmond  County. 

In  the  Borough  of  Manhattan  in  the  office  of  the  register 
of  the  County  of  New  York. 

In  the  Borough  of  Bronx  in  the  office  of  the  register  of  the 
County  of  Bronx. 

If  property  is  located  in  New  York  City  when  contracted 
for,  and  vendee  resides  elsewhere  within  the  state,  it  seems 
necessary  to  file  in  the  ordinary  way,  and  also  as  provided  for 
said  New  York  City. 


NEW  YORK.  287 

Every  instrument  affecting  chattels,  filed  in  the  counties 
comprising"  New  York  City  (Bronx,  Kings,  Queens,  New  York, 
Richmond),  must  be  indorsed  on  the  face  thereof  with  the 
character  of  the  instrument,  the  names  of  all  the  parties  thereto, 
and  the  location  of  the  property  covered.  This  means  that  all 
contracts  to  be  filed  in  New  York  City,  should  state  the  loca- 
tion in  such  city  of  the  property  affected  thereby. 

Filing  Where  Property  is  Attached  or  to    be    Attached    to    a 
Building. 

Where  property  sold  under  conditional  contract  of  sale  is 
supplied  for,  and  is  attached  or  to  be  attached  to  a  building,  the 
said  contract  in  order  to  retain  title  in  the  vendor  as  to  sub- 
sequent bona  fide  purchasers,  or  encumbrancers  of  the  premises 
on  which  such  building  stands,  must  contain  a  brief  description 
of  the  premises  sufficient  for  identification,  and  if  in  a  city  or 
village  its  location  by  street  number,  if  known;  and  where  the 
block  system  of  recording  and  indexing  is  in  use,  (to  wit  New 
York  City),  the  section  and  block  within  which  the  premises 
are  located. 

In  order  that  such  contract  shall  be  valid  as  to  the  third 
persons  above  named,  the  original  must  be  filed  on  or  before 
the  date  of  delivering  said  property  at  the  building  in  question. 
The  filing  oflficer  is  the  county  clerk  of  the  county  within  which 
are  located  the  premises  whereon  the  building  stands.  Except 
in  the  Borough  of  Brooklyn  where  it  must  be  filed  in  the  office 
of  the  register  of  Kings  county;  and  in  the  Borough  of  Bronx, 
where  it  must  be  filed  in  the  office  of  the  register  of  Bronx 
county;  and  in  the  Borough  of  Manhattan  where  it  must  be 
filed  in  the  office  of  the  register  of  New  York  county. 

Due  to  the  fact  that  no  definite  interpretation  can  be  placed 
upon  the  words  "attached  or  to  be  attached  to  a  building,"  it  is 
advised  that  all  conditional  sale  contracts  covering  personal 
property  which  is  attached  to,  but  docs  not  become  an  actual  and 
integral  part  of  a  building;  shall  be  filed  in  accordance  with  both 


288  CONDITIONAL  SALES. 

methods  provided  for  in  New  York.  Where  this  precaution  is 
taken  no  loss  can  occur,  but  under  no  other  system  can  the  vendor 
be  protected  beyond  question. 

Every  instrument  affecting  chattels  filed  in  the  counties 
comprising  New  York  City  (Bronx,  Kings,  Queens,  New 
York,  Richmond),  must  be  endorsed  on  the  face  thereof  with 
the  character  of  the  instrument,  the  names  of  all  the  parties 
thereto,  and  the  location  of  the  property  covered.  This  means 
that  all  contracts  to  be  filed  in  New  York  City  should  state  the 
location  in  such  city  of  the  property  affected  thereby.  Con- 
solidated Laws,  Vol.  3,  Lien  Law,  §§  230,  232,  234,  235,  as 
amended  by  Chapters  27  and  608,  Laws  of  1915.  Sup.  Vol.  10, 
Consolidated  Laws,  pages  338-340.  Code  of  Civil  Procedure  § 
3332D.  Consolidated  Laws,  Vol.  4,  Personal  Property  Law,  §§ 
60-67,  as  amended  by  Chapters  14  and  455,  Laws  of  1915,  Sup. 
Vol.  10,  Consolidated  Laws,  pages  529-531. 

When  Filing  Not  Necessary. 

Herring  v.  Hoppock  (discussed  in  New  York,  A.),  15  N. 
Y.  409;  Cole  V.  Mann  (discussed  in  New  York,  A.),  61  N.  Y.  i ; 
Prentiss  Tool  &  Supply  Co.  v.  Schirmer  etc.,  (discussed  in  New 
York,  A.),  136  N.  Y.  305. 


When  Filing  Necessary. 

Waters  &  Co.  v.  Gerard  (discussed  in  New  York,  A.),  189 
N.  Y.  302. 


Must  Be  Filed  Forthwith. 

A  chattel  mortgage  was  given  upon  personal  property  on 
September  25,  1889,  and  was  filed  November  7,  1889.  In  Jan- 
uary, 1890,  a  judgment  was  secured  against  the  mortgagor 
upon  a  debt  which  arose  prior  to  September  25,  1889.  Out  of 
these  facts  arose  an  action  to  determine  the  priority  of  lien  un- 


NEW  YORK.  289 

der  such  chattel  mortgag-e,  and  the  execution  which  had  been 
issued  under  the  judgment  aforesaid  and  levied  upon  such  ma- 
chine. It  was  held,  that  the  judgment  creditor  had  priority  as 
the  chattel  mortgage  had  not  been  filed  forthwith  under  the  cir- 
cumstances. .  It  was  pointed  out  that  under  such  facts,  it  made 
no  difference,  whether  the  debt  under  such  execution  so  issued 
was  prior  or  subsequent  to  the  chattel  mortgage.  (Same  rule 
as  to  conditional  contracts).  Karst  v.  Gane  et  al,  136  N.  Y. 
316,  ^2  N.  E.  1073;  Same  eflfect,  Stephens  v.  Perrine  et  al,  143 
N.  Y,  476,  39  N.  E.  11;  Stephens  v.  Meriden  et  al,  160  N.  Y. 
178,  54  N.  E.  781  ;  Vreeland  v.  Pratt,  42  N.  Y.  St.  R.  582;  Bul- 
lard  V.  Kenyon,  53  N.  Y.  St.  R.  731 ;  Seger  &  Gross  Co.  v. 
Maclaire,  165  N.  Y.  S.  423. 

Filing  of  a  chattel  mortgage  ten  weeks  after  execution  is 
invalid.  (Same  rule  would  apply  to  a  conditional  contract  of 
sale).     Levy  v.  Horn,  153  N.  Y.  S.  913. 

Notice  Obviates  Filing. 

Tompkins  v.  Fonda  Glove  Lining  Co.  (discussed  in  New 
York,  B.),  188  N.  Y.  261  ;  Rodney,  Hunt  Machine  Co.  v.  Stew- 
art et  al,  (discussed  in  New  York,  G.),  57  Hun.  545. 

Filing  no  Protection  when  Vendee  Contractor. 

Milicie  v.  Pearson  (discussed  in  New  York,  L.),  no  A.  D. 
770;  Jacobs  V.  Feinstein  (discussed  in  New  York,  L.),  133  A. 
D.  416;  Albert  v.  Steiner  Mfg.  Co.  (discussed  in  New  York, 
L.),  42  Misc.  522,  86  N.  Y.  S.  162. 

Where  no  Delivery  Made,  no  Filing  is  Required. 

The  statute  on  conditional  sales  in  New  York,  where  the 
property  is  not  attached  or  to  be  attached  to  real  estate,  does 
not  require  filing  unless  such  property  has  been  delivered  to 
the  vendee.  So  held,  in  an  action  involving  the  rights  of  a 
vendor  and  those  of  a  party  who  claimed  to  be  a  subsequent 


290  CONDITIOXAL  SALES. 

mortgagee  for  value  and  without  notice.  The  property  in  ques- 
tion was  cattle,  and  had  not  been  delivered.  Flynn  v.  Badger, 
173  A.  D.  y\,  158  X.  Y.  S.  859. 

Valid  as  to  Trustee  in  Bankruptcy  Without  Filing, 

A  cash  register  was  delivered  in  New  York  under  con- 
ditional sale  contract  and  nothing  was  paid.  The  vendee  be- 
came bankrupt,  and  vendor  then  filed  the  contract  about  ten 
days  before  the  trustee  in  bankruptcy  sold  said  property  at 
public  auction.  The  original  vendor  then  brought  replevin 
action  for  said  register  against  the  purchaser  at  such  trustee's 
sale  and  was  allowed  to  recover.  National  Cash  Register  Co. 
V.  Gaul,  38  Misc.  743,  78  N.  Y.  S.  11 28;  Creamery  Package 
Mfg.  Co.  V.  Horton,  178  A.  D.  767,  165  N.  Y.  S.  257. 

At  Auburn.  N.  Y.,  a  Burroughs  adding  machine  was  pur- 
chased under  conditional  sale  contract.  This  contract  was 
never  filed  for  record,  and  later  an  ordinary  promissory  note 
was  given  for  the  purchase  price.  There  was  no  agreement 
that  such  note  should  be  accepted  as  payment,  and  the  note 
was  never  paid,  but  was  retained  by  the  vendor.  Later  on  the 
Dalton  Adding  ^lachine  Company  took  the  Burroughs  machine 
in  a  trade  from  the  original  vendee,  and  delivered  one  of  its 
own  machines  under  a  conditional  sale  agreement,  accepting 
the  Burroughs  as  part  payment,  but  never  took  actual  pos- 
session of  it,  leaving  same  with  the  original  vendee.  The  Dal- 
ton contract  was  never  filed  for  record,  and  when  the  vendee 
of  these  two  machines  went  into  bankruptcy,  a  petition  was 
presented  by  the  Burroughs  Company  asking  for  return  of  its 
machine,  and  a  petition  was  presented  by  the  Dalton  Company 
asking  for  return  of  its  new  machine,  and  for  possession  of  the 
Burroughs  which  had  been  traded  in  on  its  contract.  It  seems 
to  have  been  conceded  that  the  trustee  in  bankruptcy  had  no 
right  to  either  of  these  machines,  except  to  pay  the  full  balance 
owing  on  the  contract  if  he  saw  fit,  and  retain  them  for  the 
benefit  of  the  estate.  It  was  held  that  the  note  given  on  the 
Burroughs  contract  was  not  a  payment,  but  only  an  evidence 


NEW  YORK. 


291 


of  payment,  and  that  title  still  remained  with  the  vendor  and 
could  not  be  traded  away  by  the  vendee  to  the  Dalton  Com- 
pany, for  which  reason  the  Dalton  Company  were  denied  the 
right  to  take  the  machine  on  their  contract.  Thev  were,  how- 
ever, permitted  to  take  back  their  new  machine  or  have  it  paid 
for  in  full,  at  the  election  of  the  trustee,  and  the  Burroughs 
Company  were  granted  the  same  relief  with  reference  to  their 
machine.  (Payment,  Extension  &  Trade,  see  New  York,  J.). 
(Notes,  see  New  York,  N.).  In  re:  Wegman  Piano  Co.,  221 
Fed.  128. 

Where  an  adding  machine  had  been  sold  in  New  York 
under  conditional  sale  contract,  there  was  no  filing  of  such  con- 
tract until  after  a  trustee  in  bankruptcy  for  vendee  had  taken 
possession.  \'endor  petitioned  in  the  bankruptcy  court  for 
possession  of  its  machine  and  held,  no  filing  is  required  by  New- 
York  law  as  to  a  trustee  in  bankruptcy,  and  vendor  was  en- 
titled to  recover.  In  re:  Remsen  Mfg.  Co.,  227  Fed.  207;  Same 
effect,  Mergenthaler  Linotype  Co.  v.  Hull,  239  Fed.  26. 


F.     FILING  FEE. 

The  fee  for  filing  a  conditional  sale  contract  and  making 
entry  thereof  is  twelve  cents.  For  refiling  such  contract  and 
making  entry  thereof  the  fee  is  twelve  cents. 

If  the  party  filing  or  refiling  such  a  contract  requires  it,  a 
receipt  in  writing  must  be  issued  to  him  by  the  filing  officer, 
containing  the  names  of  the  parties  to  the  instrument  filed,  its 
date,  amount,  and  the  date  and  time  of  filing.  For  this  service 
the  filing  officer  is  entitled  to  a  fee  of  six  cents. 

The  filing  officers  in  the  counties  comprising  the  City  of 
New  York  (Bronx,  Kings,  Queens,  New  York,  Richmond),  re- 
ceive fees  upon  a  different  basis  from  the  remainder  of  the  state 
filing  officials. 


2<^2  CONDITIONAL    SALES. 

For  filing  a  conditional  sale  contract  or  renewal  thereof 
ten  cents.  For  entering  or  indexing  such  a  contract  or  renewal 
thereof  in  each  book  (two)  ten  cents  for  each  party  to  the 
contract. 

For  issuing  a  receipt  showing  that  the  contract  or  renewal 
thereof  has  been  filed,  twenty-five  cents.  Also  all  necessary 
postage  in  sending  such  receipt  or  other  papers. 

In  those  instances  where  the  property  involved  is  attached 
or  to  be  attached  to  a  building,  there  is  a  charge  of  fifty  cents 
for  entering  the  contract  in  the  block  index  book. 

Where  the  amount  involved  is  $100,000  or  more,  the  fee 
for  filing  and  entering  same  or  any  renewal  thereof  is  one  dol- 
lar for  each  $100,000  or  fraction  thereof.  Consolidated  Laws, 
Vol.  3,  Lien  Law,  §§  232-235,  Sup.  Vol.  8,  pages  1673-75.  Con- 
solidated Laws,  Vol.  4,  Personal  Property  Law  §  64.  Code  of 
Civil  Procedure,  §  3332D. 


G.    RE-RECORDING  OR  RENEWAL. 

Refiling  Where  Property  is  not  Attached  or  to  be  Attached  to 
a  Building. 

Such  contracts  must  be  refiled  within  thirty  days  immedi- 
ately preceding  the  end  of  one  year  from  the  date  of  the  first 
filing,  in  order  to  preserve  their  validity  as  against  subsequent 
purchasers,  pledgees,  or  mortgagees  in  good  faith.  Each  suc- 
ceeding year  must  show  a  like  refiling,  and  the  thirty  day  period 
must  be  reckoned  from  the  time  of  the  first  filing. 

Such  refiling  may  be  affected  by  filing  in  the  proper 
clerk's  ofBce : 

I.  A  statement  containing  a  description  of  such  contract, 
the  names  of  the  parties,  the  time  when  and  place  where  filed 
and  the  interest  of  the  vendor  or  his  successor  therein. 

OR: 


NEW  YORK.  293 

2.  By  filing  a  copy  of  such  conditional  sale  contract  with 
its  indorsements,  together  with  a  statement  attached  thereto  or 
indorsed  thereon,  showing  the  interest  of  the  vendor  or  his 
successor  therein. 

When  a  vendee  still  resides  at  the  place  where  the  prior 
filing  was  made  the  renewal  in  either  form  should  be  filed  in 
the  same  office. 

Where  the  vendee  is  not  such  resident,  but  still  resides 
within  the  state,  the  renewal  shall  be  made  by  filing  a  true 
copy  of  such  contract  together  with  such  statenient,  in  the 
proper  clerk's  office  as  heretofore  described  for  the  original 
filing,  same  being  fixed  by  his  new  residence. 

Where  the  vendee  is  no  longer  a  resident  of  the  state,  then 
in  the  proper  clerk's  office,  as  heretofore  described  for  the 
original  filing,  as  fixed  by  the  location  of  the  property  at  the 
time  when  the  contract  was  executed. 

Where  the  property  was  located  in  the  City  of  New  York 
when  the  contract  was  executed,  the  renewal  must  also  be 
made  by  filing  in  the  same  office  where  the  original  filing  was 
made,  a  copy  of  such  contract  with  its  indorsements  together 
with  a  statement  attached  thereto  or  indorsed  thereon,  show- 
ing the  interest  of  the  vendor  therein,  or  of  any  person  who 
has  succeeded  to  his  interest. 

In  191 5,  after  the  Borough  of  Bronx  had  become  Bronx 
County,  provisions  were  made  for  refiHng,  contracts  in  exist- 
ence at  that  time,  which  were  specially  applicable  to  the  new 
county.  (See  Laws  of  New  York,  1915^  Chap.  608).  These 
provisions  would  not  apply  to  contracts  made  since  the  County 
of  Bronx  came  into  existence. 

Refiling  Where  Property  is  Attached  or  to  be  Attached  to  a 
Building. 

A  contract  for  the  conditional  sale  of  goods  and  chattels, 
attached   or  to   be   attached   to   a   building,    shall   be   invalid   as 


294  CONDITIONAL  SALES. 

against  creditors  of  the  conditional  vendee,  and  against  sub- 
sequent purchasers  or  mortgagees  in  good  faith  of  such  goods 
and  chattels,  or  of  the  premises  upon  which  the  said  building 
stands,  after  the  expiration  of  the  first  or  any  succeeding  term 
of  one  year,  reckoning  the  time  from  the  first  filing  unless : 

1.  Within  thirty  days  preceding  the  expiration  of  such 
term  a  statement  containing  a  description  of  such  contract,  the 
names  of  the  parties,  the  time  when  and  place  where  filed,  the 
interest  of  the  conditional  vendor  or  any  person  who  has  suc- 
ceeded to  his  interest  in  the  property,  claimed  by  virtue  thereof : 

Or: 

2.  A  copy  of  such  contract  and  its  indorsements,  together 
with  a  statement  attached  thereto  or  indorsed  thereon,  showing 
the  interest  of  the  conditional  vendor,  or  of  any  person  who 
has  succeeded  to  his  interest  in  the  contract,  is  filed  in  the  office 
where  the  contract  was  originally  required  to  be  filed,  provided 
however,  if  at  the  time  such  contract  was  executed  the  premises 
whereon  the  said  building  stands  were  then  in  the  County  of 
New  York,  but  is  now  located  in  the  County  of  Bronx,  then 
such  statement  or  a  copy  of  such  contract  must  be  filed  in  the 
office  of  the  register  of  Bronx  County.  (See  Recording  or  Fil- 
ing for  citations). 


Refiling  Necessary  as  to  Chattel  Mortgage  Given  After  First 
Year. 

Colwell  Lead  Co.  v.  Home  Title  Insurance  Co.  (discussed 
in  New  York,  L.),  154  A.  D.  83;  Affirmed,  208  N.  Y.  591. 


Not  Necessary  to  Refile  as  to  Rights  Already  Fixed. 

Breeze  v.  Bayne,  202  N.  Y.  206,  95  N.  E.  ']2-] ;  Astor  Mort- 
gage Co.  V.  Milton  Construction  Co.  et  al,  (discussed  in  New 
York,  L.),  151  A.  D.  557. 


NEW  YORK.  295 

Refiling  Unnecessary  where  Parties  Have  Notice. 

Water  wheels  were  sold  and  delivered  in  New  York  under 
conditional  sale  contract,  such  contract  was  properly  filed  on 
April  9,  1887,  but  was  never  refiled.  On  June  i,  1888,  vendee 
executed  a  real  estate  mortgage  upon  the  mill  where  the  wheels 
were  located,  and  such  mortgage  expressly  covered  the  ma- 
chinery, water  wheels  and  fixtures  now  in,  or  which  ma}^  here- 
after be  in,  or  upon  the  mill,  or  on  said  premises.  No  state- 
ment is  made  concerning  the  recording  of  such  real  estate  mort- 
gage, but  the  assumption  must  be  that  it  was  recorded.  Fore- 
closure was  brought  on  such  real  estate  mortgage  and  a  sale 
of  said  premises  took  place  thereunder  on  May  4,  1889.  O" 
March  11,  1889,  the  vendee  executed  to  the  holder  of  the  real 
estate  mortgage  a  chattel  mortgage  upon  the  water  wheels  in 
(]uestion.  No  statement  is  made  concerning  the  filing  of  such 
chattel  mortgage  and  it  was  never  foreclosed.  The  purchaser 
at  the  real  estate  mortgage  foreclosure  sale  was  the  general 
manager  of  the  vendee  corporation,  and  it  was  he  with  his 
brother,  also  interested  in  the  corporation,  that  negotiated  the 
real  estate  mortgage  and  the  chattel  mortgage.  Under  such 
facts  the  original  vendor  of  the  water  wheels  brought  an  action 
in  conversion  against  the  vendee  corporation,  the  general  man- 
ager above  described  and  his  brother,  demanding  that  the  value 
of  such  water  wheels  should  be  paid. 

Held :  There  had  been  a  conversion  and  the  plaintiff  could 
recover.  That  the  failure  to  refile  the  conditional  sale  contract 
had  no  effect,  as  the  persons  who  secured  the  giving  of  the  real 
estate  mortgage  and  the  chattel  mortgage,  and  who  were 
afterwards  the  purchasers  at  the  foreclosure  sale,  had  knowl- 
edge at  all  times  of  the  conditional  sale  agreement.  (Record- 
ing or  filing,  see  New  York,  E.).  Rodney  Hunt  Machine  Co. 
V.  Stewart  &  Others,  57  Hun.  545,  11  N.  Y.  S.  448. 


296  CONDITIONAL  SALES. 

Failure  to  Refile  has  no  Effect   on    Chattel   Mortgage    Given 
During  First  Year. 

Machines  were  delivered  in  New  York  under  conditional 
sale  contract  which  provided  that  title  thereto,  should  remain 
in  the  vendor  until  payment  in  full,  which  should  include  the 
payment  of  any  notes  given.  This  contract  was  filed  as  pro- 
vided by  New  York  law,  and  notes  were  given  which  were 
never  paid.  The  conditional  sale  contract  was  never  refiled  as 
provided  by  the  laws  of  New  York,  but  during  the  year  while 
the  original  filing  was  still  eiTective,  vendee  gave  a  chattel 
mortgage  upon  such  property.  This  chattel  mortgage  was 
foreclosed  and  the  mortgagee  thereunder  bought  in  the  ma- 
chines. Later  on  the  original  vendor  brought  action  against 
him  to  recover  their  value.  Two  defenses  were  made,  one  that 
by  failing  to  refile  the  contract  within  thirty  days  before  the 
end  of  one  year  from  the  previous  filing,  the  vendor  had  lost 
his  lien  as  against  the  chattel  mortgagee.  Held  this  defense 
was  of  no  avail,  as  the  conditional  sale  contract  was  notice  to 
this  mortgagee  and  all  persons  claiming  under  him,  the  mort- 
gage having  been  taken  during  the  year  while  the  conditional 
sale  contract  was  properly  filed.  It  was  stated  that  a  diflferent 
question  w^ould  be  presented  had  the  mortgage  been  taken 
after  the  year  had  expired.  The  other  point  raised  was  that  the 
original  vendor  having  brought  action  to  recover  the  value  of 
the  machines,  and  having  secured  a  judgment  which  was  not 
paid,  such  action  constituted  an  election,  which  prevented  him 
from  afterwards  taking  possession  of  the  machines  themselves. 

Held :  This  action  did  not  constitute  such  an  election,  as  the 
contract  expressly  provided  that  title  to  such  machines  should 
remain  in  the  vendor  until  paid  for.  That  the  giving  of  notes 
and  the  securing  of  a  judgment  did  not  constitute  such  pay- 
ment. Under  all  the  facts  it  was  held  that  the  original  vendor 
could  recover  for  the  value  of  the  machines.  (Election  of 
Remedies,  see  New  York,  P.).  American  Box  Machine  Co.  v. 
Zentgraf,  45  A.  D.  522,  61  N.  Y.  S.  417. 


NEW  YORK.  297 

Failure  to  Refile  within  the  Thirty   Day  Period   Makes  the 
Contract  Invalid. 

In  re:    Watts-Woodward  Press,  181  Fed.  71. 


H.     DISCHARGE. 

Upon  payment  or  satisfaction  of  a  conditional  sale  contract 
whether  for  property  attached  or  to  be  attached  to  a  building, 
or  otherwise,  the  vendor,  his  assignee,  or  legal  representative 
must  upon  request  of  vendee  or  any  person  interested  in  the 
property,  sign  and  acknowledge  a  certificate  of  satisfaction  or 
payment,  and  where  such  certificate  is  filed  with  the  officer 
having  the  conditional  sale  contract  on  file,  said  officer  must 
mark  the  contract  discharged.  A  penalty  for  failure  to  satisfy 
is  not  stated,  but  the  actual  damage  suflfered  could  undoubtedly 
be  recovered.  Fees  for  filing  and  entering  discharge,  twelve 
cents. 

The  filing  officers  in  the  counties  comprising  New  York 
City  (Bronx,  Kings,  Queens,  New  York,  Richmond),  are  en- 
titled to  receive  fifty  cents  for  filing  and  entering  satisfaction 
of  a  conditional  sale  contract,  and  twenty-five  .cents  for  exam- 
ining each  assignment  thereof.  Also  twenty-five  cents  for  each 
record  of  discharge  entered  upon  the  block  or  alphabetical  index. 
Consolidated  Laws,  Vol.  3,  Lien  Law,  §§  234,  238.  Code  of 
Civil  Procedure,  §  3332D.  Consolidated  Laws,  Vol.  4,  Personal 
Property  Laws,  §  64. 


Discharge  Before  Payment  Where  Property  Attached  or  to  be 
Attached  to  Real  Estate. 

The  lien  upon  real  property  of  a  contract  for  the  con- 
ditional sale  of  goods  and  chattels,  attached  or  to  be  attached 
to  a  building,  filed  as  provided  by  New  York  laws  in  the  office 
of  a  register  of  deeds  or  county  clerk,  may  also  be  discharged 
in  the  followinrr  manner :    Either  before  or  after  the  beginning 


298  COXDITIOXAL  SALES. 

of  any  action  or  proceeding  to  enforce  the  lien  upon  such  prop- 
erty of  any  such  contract,  the  owner  of  such  real  property,  or 
of  the  building  thereon,  may  execute  an  undertaking  with  two 
or  more  sufficient  sureties,  who  shall  be  free  holders,  to  the 
clerk  or  register  of  deeds  of  the  county  where  the  premises  are 
situated,  in  such  sum  as  a  justice  of  the  supreme  court  or  the 
county  judge  may  direct,  not  less  than  the  amount  due,  and  to 
become  due  upon  such  contract,  conditioned  for  the  payment 
of  any  judgment  which  may  be  rendered  against  such  real 
property,  or  building  on  account  of  such  contract.  The  sureties 
shall  together  justify  in  double  the  sum  named  in  the  under- 
taking. A  copy  of  the  undertaking,  with  notice  that  the  sure- 
ties will  justify  before  a  justice  of  the  supreme  court,  or  the 
county  judge,  at  the  time  and  place  therein  mentioned,  must 
be  served  upon  the  conditional  vendor,  or  his  attorney,  not  less 
than  five  days  before  such  time.  Upon  the  approval  of  the 
undertaking  by  the  judge  or  justice,  an  order  shall  be  made 
discharging  such  lien.  The  bond  in  question  may  be  executed 
by  a  surety  company.  If  the  conditional  vendor  cannot  be 
found,  or  does  not  appear  by  attorney,  such  service  may  be 
made  by  leaving  a  copy  of  such  undertaking  and  notice  at  the 
conditional  vendor's  place  of  residence,  or  if  a  corporation  at 
its  principal  place  of  business  within  the  state  as  stated  in  the 
contract,  with  a  person  of  suitable  age  and  discretion  therein, 
or  if  the  house  of  his  abode  or  its  place  of  business  is  not  stated 
in  said  contract  and  is  not  known,  then  in  such  manner  as  the 
court  may  direct.  The  premises,  if  any  described  in  the  con- 
tract as  the  vendor's  residence  or  place  of  business  shall  be 
deemed  his  said  residence  or  place  of  business  for  the  purpose 
of  said  service  at  the  time  thereof,  unless  it  is  shown  affirma- 
tively that  the  person  serving  the  papers  or  directing  the  ser- 
vice had  knowledge  to  the  contrary.  Personal  Property  Law, 
§  64-A,  as  added  by  Chapter  697,  Laws  of  19 17. 

L     CRIMINAL  LIABILITY  OF  VENDEE. 

It  is  a  misdemeanor  to  sell,  assign,  exchange,  secrete  or 
otherwise  dispose  of  property  held  under  conditional  sale  con- 


NEW  YORK.  299 

tract,  punishable  upon  conviction  by  imprisonment  in  the 
county  jail  for  not  more  than  one  year,  or  by  a  fine  of  not  more 
than  $500.00  or  both. 

A  vendee  may  also  be  guilty  of  larceny  where  he  is  in 
default,  and  proper  demand  has  been  made  upon  him  for  re- 
turn.   Penal  Law,  §§  940,  1290,  1937. 


Crime  to  Withhold  Property. 

A  diamond  ring  was  delivered  in  New  York  under  two 
written  agreements,  which  together  made  a  conditional  sale 
contract.  This  contract  provided  among  other  things  that  if 
vendee  defaulted,  he  must  surrender  possession  of  the  ring,  but 
having  done  so,  he  was  entitled  to  receive  other  jewelry  com- 
mensurate in  value  with  the  money  he  had  paid  in.  Under 
such  circumstances  vendee  made  default  and  vendor  demanded 
return  of  the  ring,  but  did  not  offer  other  jewelry,  in  compli- 
ance with  the  terms  of  such  contract,  vendee  having  paid  in 
certain  sums  of  money.  \'endee  refused  to  deliver  possession 
of  the  ring  and  was  arrested  and  convicted  of  larceny.  This 
conviction  was  reversed  by  the  Court  of  Appeals,  chiefly  upon 
the  ground  that  vendee  had  not  been  guilty  of  felonious  intent 
when  he  kept  the  ring,  as  he  was  entitled  to  receive  other 
jewelry  before  being  obliged  to  surrender  said  ring.  The  opin- 
ion clearly  implies  that  under  a  conditional  sale  contract  where 
the  vendor  has  performed  in  full,  and  the  vendee  is  in  default, 
then  upon  proper  demand  for  return  of  such  property  and  a 
refusal  on  the  part  of  the  vendee  to  surrender  it,  the  crime  of 
larceny  has  been  committed  if  the  jury  finds  that  it  was  the 
vendee's  intent  to  deprive  the  true  owner  of  its  property.  In 
this  case  before  the  criminal  action  was  started  vendor  had  sued 
vendee  in  conversion  and  secured  a  judgment  for  the  value  of 
the  ring,  but  such  fact  was  given  no  weight  in  making  the 
above  determination.  People  v.  Gluck,  188  N.  Y.  167,  80  N.  F. 
1022 ;  See,  People  v.  Stanton,  79  A.  D.  634.  80  N.  Y.  S.  2. 


300  CONDITIONAL  SALES. 

J.     PAYMENT,  EXTENSION  AND  TRADE. 

When  Payment  May  be  Made. 

In  the  case  of  a  conditional  sale  contract  where  title  is  to 
v^est  in  vendee  upon  payment,  the  purchaser  may  perfect  such 
title  at  any  time  by  tendering  the  balance  unpaid  with  interest 
on  all  deferred  payments  to  the  date  of  their  maturity  So  held 
in  an  action  of  replevin  involving  a  sewing  machine.  Cush- 
man  v.  Jewell,  7  Hun.  525. 

Effect  of  Extension  and  Removal. 

Where  a  vendee  under  conditional  sale  contract  had  be- 
come in  default  the  vendor  had  made  demand  for  the  property, 
but  later  had  granted  further  time,  and  had  accepted  partial 
payments.  The  contract  provided  that  the  piano  in  question 
should  not  be  moved  from  a  stated  address  in  Rochester,  N.  Y., 
without  vendor's  consent.  This  consent  was  given  and  the  in- 
strument moved  to  another  place  in  Rochester.  Later  without 
vendor's  consent  said  piano  was  moved  out  of  the  city,  and  as 
vendee  was  in  default,  vendor  brought  action  for  possession. 
No  demand  was  made  at  such  time  for  possession,  but  it  was 
held  the  removal  of  such  piano  outside  the  city  of  Rochester 
was  such  an  act  as  created  a  forfeiture  under  said  contract  and 
no  demand  was  necessary.  Plaintifif  was  permitted  to  recover. 
(Repossession  and  Refund^  see  New  York,  S.).  Gibbons  v. 
Luke,  37  Hun.  576. 

Extension  May  be  Granted. 

Cunningham  v.  Hedge,  (discussed  in  New  York,  S.),  12  A. 
D.  212. 

One  Receiving  Conditionally  Sold  Property  in  Trade  is  not 
Bona  Fide  Purchaser, 

In  re:  Wegman  Piano  Co.  (discussed  in  New  York,  E.), 
221  Fed.  128. 


NEW  YORK.  301 

K.     LOSS,  WHO  MUST  BEAR. 

Vendor  Loses. 

A  cash  register  was  delivered  under  conditional  contract 
of  sale.  The  contract  provided  that  when  payment  in  full 
should  have  been  received  the  register  was  to  become  the  prop- 
erty of  the  vendee.  There  was  no  provision  for  a  bill  of  sale. 
Before  the  property  was  paid  for  in  full  the  building  in  which 
the  said  property  was  located  burned  without  the  fault  of  either 
vendor  or  vendee. 

In  a  suit  for  the  balance  it  was  held  that  as  the  contract 
left  nothing  to  be  done  by  the  vendor,  not  even  the  giving  of 
a  bill  of  sale,  the  consideration  for  the  promise  of  vendee  to  pay 
had  not  failed  and  it  was  liable  for  the  balance  of  the  purchase 
price.  National  Cash  Register  Co.  v.  South  Bay  C.  H.  Ass'n., 
64  Misc.  125,  118  N.  Y.  S.  1044. 

This  case  establishes  the  rule  under  an  ordinary  con- 
ditional contract  of  sale  reserving  title  in  vendor  until  paid 
for,  and  by  which  terms  a  bill  of  sale  is  to  be  given  when  full 
payment  is  received  ;  that  in  case  the  property  is  injured  or 
destroyed  before  payment,  the  vendor  must  stand  the  loss. 

On  the  other  hand  it  is  settled  that  such  contract  may  im- 
pose the  loss  upon  the  vendee  if  properly  drawn  and  thus  make 
the  case  an  exception  to  the  general  rule, 

L.     FIXTURES.     (See  Recording  or  Filing). 

What  is  not  Attached  to  a  Building. 

The  owner  of  real  estate  in  New  York  City  desiring  to 
build  thereon,  executed  two  mortgages  upon  such  property  to 
secure  advancements  of  money  which  were  to  be  paid  under 
the  mortgages  to  the  owner,  as  the  construction  of  the  building 
progressed.  No  statement  made  as  to  whether  or  not  these 
mortgages  were  recorded,  but  it  is  assumed  that  they  were 


302  CONDITIONAL  SALES. 

properly  recorded.  They  were  dated  September  lo,  1898. 
Thereafter  the  owner  of  the  premises,  being  the  mortgagor, 
under  the  real  estate  mortgages,  contracted  with  a  plumbing 
firm  to  furnish  and  install  the  plumbing  in  such  building,  con- 
sisting of  closets,  wash  basins,  tubs,  sinks,  and  smaller  articles, 
known  as  plumbers'  fixtures.  This  contract  was  dated  March 
17,  1899,  and  was  filed  March  30,  1899,  being  the  date  follow- 
ing the  day  when  such  vendor  plumbing  firm  began  furnish- 
ing the  articles  in  question  at  the  building.  Under  the  real 
estate  mortgages  one  of  the  payments  was  to  be  made,  when 
the  plumbing  work  was  fully  completed,  and  was  so  made  after 
the  plumbing  firm  had  completed  its  contract.  The  owner  of 
such  building  failed  to  pay  for  the  plumbing,  and  such  firm 
started  to  remove  the  articles  which  had  been  furnished  under 
their  contract.  At  this  point  the  holder  of  the  real  estate  mort- 
gages brought  action  to  restrain  them  from  such  acts.  Under 
such  facts  it  was  held  that  the  prior  mortgagee  of  the  real  estate 
had  no  rights  which  were  ahead  of  the  vendor,  under  the  con- 
ditional sale  contract  to  furnish  the  plumbing;  that  such  plumb- 
ing had  not  become  a  fixture  in  the  buildings  and  that  it  could 
be  removed.  New^  York  Investment  Co.  v.  Cosgrove,  47  A.  D. 
35,  62  X.  Y.  S.  372;  Affirmed,  167  N.  Y.  601. 

A  party  contracted  to  buy  real  estate  and  was  put  in  pos- 
session of  same,  he  then  contracted  for  an  engine  under  con- 
ditional contract  of  sale  and  this  engine  was  fastened  to  a  ce- 
ment foundation  by  bolts  and  nuts  which  could  be  unscrewed. 
Such  party  afterwards  defaulted  on  both  the  land  contract  and 
the  conditional  contract  of  sale  for  the  engine.  Vendor  of  said 
engine  demanded  delivery  or  payment  of  the  full  contract  price 
when  there  was  only  a  small  balance  remaining  under  the  con- 
tract.   Suit  in  conversion  was  brought  by  vendor  of  engine. 

Held :  The  engine  did  not  become  a  fixture,  but  the  plain- 
tiff was  only  entitled  to  recover  the  balance  unpaid.  (Measure 
of  Damages,  see  New  York,  R.).  Duntz  v.  Granger  Brewing 
Co.,  96  A.  D.  631,  41  Misc.  177;  Affirmed  without  opinion  in 
184  N.  Y.  595. 


NEW  YORK.  303 

Machinery  for  a  brewery  was  sold  under  conditional  con- 
tract of  sale  which  was  not  filed.  Openings  were  made  in  the 
brewery  walls  and  roof  to  put  it  in  position.  Some  was  fas- 
tened to  the  building  and  to  foundations,  and  other  parts  stood 
of  their  own  weight.  A  mortgage  was  afterwards  placed  on 
the  real  estate  and  this  machinery  was  especially  described 
therein  as  real  property.  An  action  was  brought  to  foreclose 
on  the  real  estate  mortgage  and  the  vendor  of  the  machinery 
defended. 

Held:  The  contract  did  not  need  to  be  filed  as  to  the  sub- 
sequent mortgage  as  the  property  covered  by  it  was  not  in 
existence  when  the  contract  was  made  and  was  not  completed 
and  delivered  for  some  time  thereafter,  further  that  the  prop- 
erty in  question  would  have  become  a  fixture  but  for  the  con- 
tract, but  under  the  circumstances  it  remained  personal  prop- 
erty and  could  not  be  foreclosed.  Davis  v.  Bliss,  187  N.  Y.  y"/, 
79N.  E.851. 

A  decision  in  the  appellate  division  had  been  that  the  boil- 
ers and  a  heating  plant  in  a  building  were  fixtures.  Mr.  Justice 
Scott  dissented  from  the  ])revailing  opinion,  and  the  Court  of 
Appeals  reversed  such  judgment  upon  his  opinion,  thus,  holding 
that  a  heating  plant  under  conditional  sale  contract  did  not  be- 
come attached  to  a  building  in  such  a  manner  as  to  make  it  a 
fixture,  and  to  make  it  necessary  that  such  contract  should  be 
filed  as  against  bona  fide  purchasers  and  incumbrancers  of  the 
real  estate.  Fitzgibbons  etc.  v.  Manhasset  etc.,  125  A.  D.  764, 
TIG  N.  Y.  S.  225,  Reversed.  198  N.  Y.  517. 

A  building  and  loan  association  took  mortgages  upon  real 
estate  situate  in  Greater  New  York,  and  properly  recorded 
same.  Thereafter  the  owner  of  such  premises  bought  under 
conditional  sale  contract  plumbing  fixtures  for  the  building  be- 
ing erected  on  the  mortgaged  lands.  These  articles  consisted 
of  bath  tubs,  bowls,  sinks,  closets  and  the  necessary  attach- 
ments. The  conditional  sale  contract  was  properly  filed,  after 
which  the  real  estate  mortgages  were  foreclosed,  and  the  ven- 


304  CONDITIONAL  SALES, 

dor  of  said  plumbing  articles  was  made  a  defendant,  but  did  not 
litigate  its  rights  in  such  foreclosure.  The  building  was  sold 
under  foreclosure,  and  the  purchaser  thereafter  sold  to  another 
and  from  such  purchaser  at  the  foreclosure  sale  the  original 
vendor  of  the  plumbing  sought  to  recover  for  its  conversion. 
The  conditional  sale  contract  was  not  refiled,  and  the  sale  to 
the  third  person  was  after  the  first  year  had  expired.  All  these 
facts  appeared  on  demurrer  to  the  answer  and  held,  the  third 
party  secured  good  title  because  of  the  failure  to  refile  the  con- 
ditional sale  contract,  but  the  vendee  at  foreclosure  was  liable. 
(Re-recording  or  Renewal,  see  New  York,  G.).  Colwell  Lead 
Co.  v.  Home  Title  Insurance  Co.,  154  A.  D.  83,  138  N.  Y.  S. 
738;  Affirmed,  208  N.  Y.  591. 

Gas  ranges  were  furnished  and  installed  in  the  apartments 
of  a  large  building  in  New  York  City  under  conditional  sale 
contract,  by  which  title  was  retained  in  the  vendor  until  paid 
for.  This  contract  was  made  with  the  owner  of  said  building 
and  was  never  filed.  These  ranges  were  attached  to  the  plumb- 
ing and  gas  pipes  in  each  apartment,  but  could  be  removed 
without  material  damage  to  the  building  or  to  the  ranges.  The 
conditional  sale  vendor  was  never  paid  in  full  for  the  ranges, 
and  later  on  a  mortgage  upon  the  real  estate  and  building  was 
foreclosed,  and  a  sale  had  (not  stated  whether  such  mortgage 
was  prior  to  the  conditional  sale  contract  or  subsequent  to  it). 
The  original  vendor  of  such  ranges  brought  action  in  conver- 
sion for  the  value  of  such  ranges  against  the  purchaser  of  the 
real  estate  at  the  foreclosure  sale.  At  the  trial  judgment  was 
in  favor  of  the  defendant,  but  same  was  reversed  by  the  Court 
of  Appeals  upon  the  ground,  that  as  to  the  owner  of  the  real 
estate  or  the  purchaser  at  the  mortgage  foreclosure  sale  these 
ranges  had  not  been  so  attached  to  the  real  estate  as  to  become 
a  part  thereof,  and  that  no  filing  of  such  contract  was  neces- 
sary as  against  a  subsequent  bona  fide  purchaser  or  incum- 
brancer of  the  buildings. 

In  other  words  it  was  held  in  substance,  that  in  order  for 
it  to  be  necessary  to  file  a  conditional  sale  contract  as  provided 


NEW  YORK.  305 

in  New  York  law,  where  property  is  attached  or  to  be  at- 
tached to  a  building,  such  property  must  be  so  attached  as  to 
become  a  fixture  under  the  law,  and  that  where  property  sold 
under  such  a  contract  does  not  become  a  fixture  upon  the  build- 
ing no  filing  is  necessary  as  against  subsequent  bona  fide  pur- 
chasers or  incumbrancers  of  the  real  estate.  Central  Union  Gas 
Co.  V.  Browning,  210  N.  Y.  10,  103  N.  E.  822. 

Stoves  and  ranges  were  furnished  for  an  apartment  house 
in  Kings  county  under  a  conditional  sale  contract  by  which  all 
title  was  retained  in  vendor  until  paid  for  in  full.  This  con- 
tract was  properly  filed  before  the  delivery  of  said  property  at 
the  buildings  where  they  were  afterwards  installed.  The  stoves 
and  ranges  in  question  were  designed  to  be  permanent  equip- 
ment in  the  buildings,  to  be  used  for  heating  and  cooking,  and 
they  were  attached  to  the  plumbing  with  that  idea  in  view. 
Prior  to  the  time  when  such  conditional  sale  contract  was  made 
a  mortgage  had  been  executed  upon  the  real  estate,  and  after 
the  transactions  explained  above  a  foreclosure  action  was 
brought  upon  such  mortgage,  and  the  conditional  sale  vendor 
of  the  stoves  and  ranges  was  made  a  party.  In  that  action  the 
rights  as  between  such  real  estate  mortgagee,  and  the  con- 
ditional sale  vendor  of  the  stoves  and  ranges  was  litigated,  and 
it  was  held,  that  such  stoves  and  ranges  retained  their  identity 
as  personal  property  under  the  conditional  sale  contract,  and 
the  real  estate  mortgage  did  not  cover  them.  Barwin  Realty 
Co.  V.  Union  Stove  Works,  146  A.  D.  319,  130  N.  Y.  S.  781; 
Affirmed,  210  N.  Y.  537. 

Tee  machinery  was  sold  under  conditional  sale  contract 
and  such  contract  was  thereafter  assigned  by  vendor  to  a  firm 
engaged  in  the  manufacturing  of  such  machines.  The  contract 
was  not  filed.  The  building  and  real  estate  where  same  were 
installed  in  New  York  were  subject  to  a  real  estate  mortgage 
at  the  time  of  such  installation,  and  later  a  foreclosure  action 
was  brought  upon  said  mortgage,  to  which  the  assignee  of  the 
conditional  sale  vendor  was  made  a  party,  the  claim  being  that 


306  CONDITIONAL  SALES. 

the  machinery  in  question  had  become    a    fixture    upon    real 
estate,  and  therefore  subject  to  the  mortgage. 

Held :  It  had  not,  and  the  real  estate  mortgage  did  not 
cover  it. 

The  contract  further  provided  that  title  should  not  pass  un- 
til paid  for  in  full,  and  until  the  payment  of  any  notes  given. 
Before  the  foreclosure  vendor's  assignee  had  sued  vendee  and 
secured  a  judgment  upon  unpaid  notes  under  the  contract,  but 
such  judgment  was  never  satisfied.  Held  this  was  not  an  elec- 
tion of  remedies  and  did  not  prevent  a  return  of  the  property. 
(Election  of  Remedies,  see  New  York,  P.).  Ratchford  v.  Cay- 
uga Co.  Cold  Storage  etc.  Co.,  159  A.  D.  525;  Affirmed,  217 
N.  Y.  565,  112  N.  E.  447. 

In  an  action  involving  possession  of  gas  fixtures  which 
had  been  sold  under  conditional  sale  agreement,  at  a  time  when 
such  contract  was  not  required  to  be  filed,  where  the  property 
covered  was  household  goods,  if  a  duplicate  of  such  contract 
was  delivered  to  the  vendee,  it  was  held  that  gas  fixtures  placed 
in  a  building  are  personal  property  under  ordinary  conditions, 
and  do  not  become  a  part  of  the  real  estate.  Baldinger  v.  Le- 
vine,  83  A.  D.  130,  82  N,  Y.  S.  483  ;  Same  efifect,  Kerby  v.  Clapp, 
15A.  D.  37,44  N.Y.S.  116. 

Prior  Mortgagee  Does  not  Take  Pumps  on  Real  Estate. 

Washington  Trust  Co.  v.  Morse  Iron  Works,  (discussed 


m 


New  York,  A.),  106  A.  D.  195. 


Mantles,  mirrors,  plumbing  and  other  property  was  fur- 
nished under  conditional  sale  contract  for  certain  houses  lo- 
cated in  Kings  county.  New  York.  These  contracts  were  prop- 
erly filed  for  record,  before  the  materials  were  so  furnished 
and  there  was  a  real  estate  mortgage  upon  the  premises,  at  the 
time  when  the  articles  of  personal  property  were  so'  furnished. 
Later  on  foreclosure  was  brought  under  such  real  estate  mort- 
gage, and  it  was  sought  to  cut  off  the  above  conditional  sale 


NEW  YORK.  307 

vendor  as  to  the  balance  unpaid  on  his  articles.  Held,  his  Hen 
was  valid  as  against  a  prior  mortgagee  of  the  real  estate.  The 
conditional  sale  contract  had  been  properly  filed,  and  the  fore- 
closure action  was  brought  before  the  end  of  one  year  after 
such  filing.  The  conditional  sale  vendor  did  not  refile  his  con- 
tract within  30  days  next  preceding  the  end  of  such  year.  In 
the  foreclosure  suit  this  point  was  raised,  and  it  was  held,  that 
no  such  refiling  was  necessary,  as  the  situs  of  these  parties 
had  been  fixed  by  the  beginning  of  the  foreclosure  action,  while 
the  conditional  sale  contract  was  still  valid,  under  its  first  fil- 
ing. It  was  stated  that  as  to  the  rights  of  other  parties,  which 
might  have  arisen  after  the  time,  when  the  foreclosure  suit 
was  brought,  that  it  possibly  might  have  been  necessary  to  re- 
file  as  to  them,  but  no  such  persons'  rights  were  included  in  the 
suit.  (Re-recording  or  renewal,  see  New  York.  G.).  Astor 
Mortgage  Company  v.  Milton  Construction  Co.  &  Others,  151 
A.  D.  557,  136  N.  Y.  S.  82. 

A  Mail  Chute  Does  not  Become  Attached  to  a  Building. 

Cutler  Mail  Chute  Co.  v.  Crawford,  (discussed  in  New 
York,  B.),  167  A.  D.  246. 

Plumbing  put  in  a  house  under  conditional  sale  contract 
with  the  owner,  does  not  become  a  fixture,  and  may  be  removed 
as  to  prior  mortgagee  of  real  estate.  Leibowitz  v.  Thomson 
R.  E.  Co.,  158  A.  D.  592,  143  N.  Y.  S.  802. 

Where  a  real  estate  mortgage  existed  upon  several  houses 
and  lots  in  Queens  county,  N.  Y.,  the  gas  fixtures  and  heating 
plants  in  such  houses  were  furnished  under  conditional  sale 
contract  and  these  were  duly  filed  with  the  county  clerk  of 
Queens  county.  Thereafter  another  mortgage  was  placed  upon 
the  real  estate  involved,  and  upon  the  first  mortgage  being 
foreclosed  the  premises  were  purchased  by  a  party  who  paid 
therefor,  and  upon  learning  of  the  conditional  sale  contracts 
demanded  a  return  to  him  of  the  money,  so  paid,  to  an  amount 
which  would  be  recompense  for  the  balance  he  must  pay  upon 


308  CONDITIONAL  SALES. 

such  contracts  in  order  to  retain  the 'personal  property  in  ques- 
tion. The  referee  on  foreclosure  made  the  refund,  and  pro- 
ceedings were  then  instituted  by  the  second  mortgagee  against 
such  referee  to  recover  the  money  so  paid.  The  second  mort- 
gagee claimed  it  as  surplus. 

Held :  Recovery  could  be  had,  as  the  personal  property 
never  became  a  part  of  the  real  estate,  and  the  purchaser  at 
such  foreclosure  sale  secured  no  rights  in  it,  and  was  not  en- 
titled to  the  refund.  Foreman  v.  Nordon  Construction  Co.,  167 
A.  D.  712,  152  N.  Y.  S.  592. 

Property  not  Accepted  Cannot  Become  Fixture. 

A  firm  engaged  in  the  business  of  manufacturing  elec- 
trical machinery  sold  electric  generators  under  conditional 
contracts  of  sale  to  a  firm  in  Rochester,  N.  Y.,  and  this  firm 
before  the  machines  were  shipped,  sold  them  to  a  corporation 
which  owned  and  was  equipping  an  amusement  park  in  that 
city.  The  contract  never  was  filed  as  provided  by  New  York 
law.  The  plans  and  specifications  for  the  machines  were  ex- 
amined by  the  officers  of  the  Amusement  Company  and  its 
architect,  and  written  notice  of  the  terms  of  the  conditional 
contract  of  sale  was  served  on  the  officers  of  such  company 
before  delivery.  The  machines  were  shipped  direct  to  the 
Amusement  Company,  placed  upon  foundations  and  perman- 
ently fixed  thereto,  connections  were  also  made  between  such 
generators  and  the  boilers  of  the  plant  by  means  of  steam  pipes 
so  that  they  might  be  operated  in  furnishing  electric  current 
for  use  in  the  park.  The  machines  were  not  paid  for  by  ven- 
dee, and  the  Amusement  Company  in  whose  possession  they 
were,  went  into  bankruptcy.  The  trustee  in  bankruptcy  sold 
the  machines  to  individuals  who  had  been  the  officers  of  the 
Amusement  Company,  and  these  persons  later  formed  another 
corporation  and  sold  the  machines  to  such  corporation.  Ac- 
tion was  brought  by  the  original  vendor  against  this  latter  cor- 
poration to  recover  the  machines,  and  upon  the  trial  the  court 
directed  a  verdict  for  the  defendant.    Upon  the  first  appeal  it 


NEW  YORK.  309 

was  decided  that  the  machines  were  attached  to  real  estate 
within  the  meaning  of  the  New  York  statute,  and  in  case  there 
had  been  a  subsequent  bona  fide  purchaser  or  encumbrancer 
of  the  premises  the  lien  of  the  conditional  sale  contract  would 
have  been  lost.  But  inasmuch  as  the  terms  of  the  agreement 
were  brought  to  the  attention  of  the  very  persons  who  after- 
ward purchased  the  machines  at  trustee's  sale,  and  were  of- 
ficers of  the  corporation  to  which  they  afterward  sOld  them, 
and  as  a  trustee  in  bankruptcy  is  not  a  subsequent  bona  fide 
purchaser  or  encumbrancer,  the  contract  did  not  need  to  be 
filed  as  to  them  and  a  new  trial  was  ordered.     (140  A.  D.  726). 

Upon  the  new  trial  verdict  was  for  plaintiff  and  this  was 
set  aside  by  the  trial  judge.  An  appeal  taken  resulted  in  a  re- 
instatement of  the  verdict,  chiefly  upon  the  grounds : 

First— That  these  machines  never  had  been  accepted  and 
could  not  therefore  have  become  fixtures,  and 

Second — That  the  parties  defendant  were  not  shown  to 
be  bona  fide  purchasers  for  value.  (Defenses  and  Counter- 
claims, see  New  York,  Q.).  Crocker-Wheeler  Co.  v.  Genesee 
Recreation  Co.,  160  A.  D.  373,  145  N.  Y.  S.  477. 

Trustee  in  Bankruptcy  Does  not  Take  Stoves  in  Apartment 
House. 

A  letter  was  written  by  an  agent  of  the  owner  of  stoves 
and  ranges,  offering  to  furnish  certain  of  these  to  be  set  up 
in  a  tenement  house,  title  was  to  be  retained  in  vendor  until 
paid  for.  Pursuant  to  such  offer  the  stoves  were  delivered  and 
attached  in  the  usual  way  to  the  building.  A  copy  of  the  con- 
tract was  filed  as  provided  by  New  York  law.  The  tenement 
house  owner  then  became  bankrupt,  and  upon  petition  of  the 
owner  of  said  stoves  for  payment  in  full,  or  the  right  to  fore- 
close his  lien,  the  sufficiency  of  this  contract  was  attacked  by 
the  trustee. 

Held :  It  was  a  valid  conditional  sale  contract  as  against 
the  trustee.    In  re:  Cohen,  163  Fed.  444. 


3IO  CONDITIONAL  SALES. 

What  is  Attached  to  a  Building. 

The  owner  of  a  lot  in  New  York  City  upon  which  he  was 
erecting  a  large  building  contracted  with  an  individual  for  a 
steam  heating  plant  to  be  installed  in  such  building.  This  con- 
tract was  one  of  conditional  sale,  but  was  not  filed  until  long 
after  the  plant  was  completed,  and  after  the  building  had  been 
sold  to  a  bona  fide  purchaser  for  value.  The  heating  plant 
consisted  of  a  boiler  with  pipes  extending  through  the  build- 
ing, there  being  radiators  in  the  diflferent  rooms,  connected 
with  such  pipes  by  valves  and  other  appliances.  The  vendor 
never  received  payment  in  full  for  this  property,  and  at  one 
time  filed  a  mechanic's  lien  against  the  original  owner's  interest 
in  the  building,  he  being  the  vendee  of  the  heating  plant.  The 
mechanic's  lien  never  seems  to  have  been  foreclosed.  After 
the  building,  including  such  heating  plant,  had  passed  through 
the  hands  of  two  persons,  by  purchase,  the  original  vendor  of 
such  heating  plant  brought  a  replevin  action  against  one  of 
these  purchasers  to  recover  possession  of  said  plant. 

Held :  He  had  filed  a  mechanic's  lien  for  the  amount  ow- 
ing which  was  an  election  of  remedies.  Another  reason  being 
that  he  had  failed  to  file  a  copy  of  his  contract  before  making 
delivery  of  the  heating  plant  at  the  building  to  which  it  was 
afterwards  attached.  It  was  held  that  such  heating  plant  so 
installed  in  the  building  was  a  fixture  and  had  passed  to  the 
bona  fide  purchasers  of  such  building.  (Election  of  remedies, 
see  New  York,  P.).  Kirk  v.  Crystal,  ii8  A.  D.  32,  103  N.  Y.  S. 
17;  Affirmed,  193  N.  Y.  622. 

Property  not  in  existence  was  contracted  for  under  con- 
ditional contract  of  sale,  and  was  afterwards  attached  to  a 
building.    Contract  was  not  filed  and  the  building  was  sold. 

Held :  The  purchaser  of  such  building  got  good  title  to 
the  fixtures  even  though  the  property  was  not  in  existence  at 
the  time  the  contract  was  made.  McLean  v.  Griot,  118  A.  D. 
100,  103  N.  Y.  S.  129. 


NEW  YORK.  311 

A  contract  was  made  for  the  furnishing  of  iron  work  in 
the  reconstruction  of  certain  buildings  in  Brooklyn.  This  iron 
work  consisted  largely  of  stairs  and  fire  escapes.  The  contract 
under  which  it  was  to  be  furnished  was  a  conditional  sale 
agreement,  but  it  was  not  filed  until  after  the  work  was  com- 
pleted. Later  a  prior  mortgage  upon  the  building  was  fore- 
closed and  a  sale  had.  The  parties  who  bought  at  such  sale 
afterwards  sold  the  property  again  to  a  third  person,  and 
against  him  action  was  later  brought  to  recover  in  conversion 
for  parts  of  the  stairs  and  fire  escapes  so  furnished. 

Held :  That  as  the  contract  in  question  had  not  been  filed 
before  the  property  covered  by  it  was  delivered  at  the  building 
where  it  was  to  be  attached,  or  did  thereafter  become  attached, 
no  recovery  could  be  had,  as  against  the  bona  fide  purchaser 
of  the  premises.  Klein  v.  Cohen,  142  A.  D.  500,  127  N.  Y.  S. 
171. 

Where  ice  machinery  had  been  delivered  in  New  York  un- 
der conditional  sale  contract,  the  property  to  which  it  became 
attached  was  subject  to  a  real  estate  mortgage.  The  contract 
provided  that  title  should  not  pass  until  paid  for  in  full,  which 
should  include  the  payment  of  any  notes  given.  The  right  to 
file  a  mechanic's  lien  was  also  provided  for  in  the  contract.  One 
payment  became  due,  was  not  paid,  and  vendor  brought  action 
to  recover  the  entire  contract  price.  Judgment  was  secured  but 
never  paid.  Vendor  also  filed  a  mechanic's  lien.  Later  the 
real  estate  mortgagee  brought  foreclosure  and  made  the  orig- 
inal vendor  a  party  defendant.  Vendor  appeared  at  the  sale 
and  gave  notice  of  its  rights.  Later  and  before  the  purchaser 
at  such  sale  paid  the  purchase  price,  or  received  a  deed,  vendor 
demanded  possession  of  the  machinery,  which  was  refused. 
Such  original  vendor  under  the  conditional  sale  contract  then 
brought  action  in  conversion. 

Held :  No  proper  demand  had  been  made,  and  further 
there  had  been  an  election  of  remedies  in  suing  for  the  pur- 
chase price,  and  filing  the  mechanic's  lien,  which  prevented  an 
action  in  conversion.     (Election  of  Remedies,  see  New  York, 


312  CONDITIONAL  SALES. 

P.).  Shipley  Construction  etc.  Co.  v.  Mager,  165  A.  D.  866,  150 
N.  Y.  S.  969;  Same  effect,  York  Mfg.  Co.  v.  Mager,  165  A.  D. 
872,  150  N.Y.  S.  973. 

Property  Sold  to  Contractor  Becomes  Fixture. 

A  person  who  rented  a  store  in  Brooklyn  desired  to  have 
it  fitted  up  as  a  retail  tailoring  establishment.  Under  such  cir- 
cumstances he  made  a  contract  with  a  firm  to  do  the  work  and 
furnish  all  the  fixtures.  This  firm  afterwards  let  to  another, 
that  part  of  the  construction  work  which  embraced  counters, 
show  cases  and  other  articles.  The  contract  between  these  two 
parties  was,  that  title  to  these  articles  should  be  retained  in  the 
sub-contractor  until  paid  for,  and  this  contract  was  filed  as  pro- 
vided by  law,  before  all  of  such  articles  had  been  placed  in  the 
store.  Later  on  the  sub-contractor  not  having  been  paid  in 
full,  assigned  his  interest  in  the  conditional  sale  agreement  to 
a  third  person,  and  this  third  person  brought  action  against  the 
store  keeper  for  their  possession.  The  complaint  was  dis- 
missed at  the  trial  and  judgment  was  entered  for  defendant. 
From  such  judgment  plaintiff  appealed  and  same  was  affirmed, 
upon  the  theory  that  where  property  such  as  this  was  furnished 
to  a  contractor  to  be  used  in  a  certain  way,  and  the  person  so 
furnishing  it  knew  at  the  time  when  the  contract  was  made 
how  it  was  to  be  so  used,  that  person  could  not  thereafter,  even 
though  he  held  a  conditional  sale  contract  upon  the  property 
properly  filed,  recover  its  possession  from  a  person  who  had 
received  it  from  the  principal  contractor. 

In  other  words,  the  basis  of  this  decision  was  that  a  con- 
ditional sale  contract,  even  though  properly  filed  will  not  pro- 
tect the  vendor,  where  the  property  in  question  is  delivered  to 
a  contractor,  and  is  used  by  him  in  performance  of  his  contract 
to  equip  a  store  or  building,  or  under  any  other  circumstances 
where  the  original  owner  of  such  goods  knows  how  they  are  to 
be  used,  when  he  makes  his  contract.  (This  decision  evidently 
overlooked  the  full  import  of  the  New  York  law  for  filing  of 
contracts  covering  property  attached  or  to  become  attached  to 


NEW  YORK.  313 

real  estate).  (Recording  or  Filing,  see  New  York,  E.).  Milicie 
V.  Pearson,  no  A.  D.  770,  97  N.  Y.  S.  431.  Same  effect,  stoves 
for  flats,  Jacobs  v.  Feinstein  (Recording  or  Filing,  see  New 
York,  E.),  133  A.  D.  416,  117  N.  Y.  S.  823. 

Where  gas  fixtures  were  sold  to  a  contractor  under  con- 
ditional sale  contract,  the  vendor  knew  same  were  to  be  used 
in  fitting  up  a  bank  building,  and  they  were  so  used.  Action 
was  brought  by  vendor  to  foreclose  the  common  law  lien  of 
the  conditional  sale  contract.  Nothing  said  as  to  whether  or 
not  the  contract  was  filed,  and  the  transaction  took  place  be- 
fore the  statute  of  New  York  on  property  attached  or  to  be  at- 
tached to  real  estate. 

Held :  As  the  property  was  bought  to  be  sold  again  no 
lien  accrued  and  no  recovery  could  be  had.  (Recording  or  Fil- 
ing, see  New  York,  E.).  Albert  v.  Steiner  Mfg.  Co.,  42  Misc. 
522,  86  N.  Y.  S.  162. 


M.     LANDLORD'S  LIEN. 
No  provision. 

N.     NOTES. 

Notes  are  not  Payment. 

The  taking  by  the  creditor  under  conditional  contract  of 
sale  of  the  debtor's  note  for  an  existing  indebtedness  does  not 
merge  or  extinguish  the  indebtedness,  the  note  is  simply  evi- 
dence of  the  debt  and  its  operation  is  only  to  fix  the  time  of  pay- 
ment. When  default  is  made  in  payment,  the  creditor  may  sue 
on  the  original  demand  and  bring  the  note  into  court  to  be  de- 
livered up  on  the  trial.  Jagger  Iron  Co.  v.  Walker,  76  N.  Y. 
521  ;  See,  St.  Albens  Beef  Co.  v.  Aldridge,  112  A.  D.  803,  99  N. 
Y.  S.  398. 


314  CONDITIONAL  SALES. 

Where  printing  presses  had  been  delivered  in  New  York 
under  conditional  sale  agreement,  the  vendee  made  an  assign- 
ment and  his  assignee  retained  the  presses,  claiming  title 
thereto.  There  were  several  presses  sold  to  the  assignor,  and 
provision  was  made  in  each  instance,  that  notes  should  be  given 
in  settlement ;  that  a  policy  of  insurance  should  be  given  on  the 
property,  and  that  security  should  be  given  for  the  payment  of 
the  notes.  There  is  no  mention  made  of  this  contract  ever  hav- 
ing been  filed.  The  original  notes,  as  given,  were  renewed  from 
time  to  time  at  the  vendee's  request,  but  no  security  ever  passed 
between  the  parties.  One  of  the  main  questions  at  issue  was 
as  to  whether  or  not  the  giving  of  notes  under  such  circum- 
stances operated  as  payment  and  superseded  the  conditional  sale 
contract,  so  that  title  passed  to  the  vendee  and  from  him  to  his 
assignee,  for  the  benefit  of  creditors.  It  was  held  that  the  giv- 
ing of  notes  did  not  operate  as  payment  and  the  original  ven- 
dor was  entitled  to  recover  its  property.  (Legal  Status,  see 
New  York,  A.).  Campbell  Printing  Press  &  Mfg.  Co.  v. 
Walker,  114  N.  Y.  7,  20  N.  E.  625;  Same  efifect.  In  re:  Weg- 
man  Piano  Co.  (discussed  in  New  York,  E.),  221  Fed.  128. 

It  is  stated  in  this  case  that  in  Indiana,  Me.,  Mass.  and  Vt,, 
a  note  given  without  express  agreement  that  it  shall  not  be  re- 
garded as  payment  of  a  debt,  will  be  considered  as  payment  of 
a  debt.  In  all  other  states  the  rule  is  given  to  the  eflfect,  that 
a  promissory  note  given  for  a  debt  does  not  become  payment 
thereof  and  extinguish  the  original  debt,  and  the  security  sur- 
rounding it,  unless  there  is  a  specific  agreement  to  that  effect, 
at  the  time  when  the  note  is  given  and  accepted. 


Notes,  no  Need  to  Surrender, 

A  conditional  sale  vendee  of  machinery  who  had  given 
notes  for  the  purchase  price  made  an  assignment,  and  the  as- 
signee took  possession  of  the  machines.  The  vendor  demanded 
return  thereof  from  such  assignee,  and  upon  refusal  brought 
an  action  in  conversion  against  such  assignee.    Upon  the  trial 


NEW  YORK. 


315 


it  was  insisted  that  such  action  could  not  be  maintained  with- 
out surrendering  the  notes,  which  had  been  given  by  the  orig- 
inal vendee,  only  one  of  which  had  become  due,  and  all  of  which 
were  outstanding.  It  was  held  that  the  original  vendor  could 
recover  his  property  irrespective  of  where  the  notes  were. 
(Legal  Status,  see  New  York,  A.).  Brewer  v.  Ford,  59  Hun. 
17,  12  N.  Y.  S.  619;  Affirmed,  126  N.  Y.  643. 

Where  a  replevin  action  was  brought  under  a  conditional 
sale  contract  to  recover  a  cash  register,  one  of  the  defenses  set 
up  was  to  the  efifect,  that  the  notes  given  under  such  contract 
covering  deferred  payments  had  not  been  tendered  to  vendee 
before  such  action  was  commenced. 

Held:  That  no  such  tender  was  necessary,  and  the  notes 
could  be  delivered  up  at  the  trial.  National  Cash  Register  Co. 
V.  Ferguson,  25  Misc.  363,  55  N.  Y.  S.  592. 

In  a  bankruptcy  case  in  New  York  involving  the  sale  of 
furniture  under  a  conditional  sale  contract,  the  facts  of  which 
transaction  do  not  appear  very  clearly  in  the  opinion,  it  was 
held,  that  where  notes  had  been  given  and  had  been  indorsed 
by  the  vendor,  but  not  without  recourse,  and  had  afterward 
been  taken  up  by  him,  that  such  actions  constituted  an  elec- 
tion of  remedies  which  would  constitute  a  waiver  of  the  title. 
It  was  further  held  that  where  notes  are  in  existence  under 
conditional  sale  contract,  it  is  not  necessary  to  offer  or  tender 
a  surrender  of  such  notes,  at  least,  before  bringing  an  action 
for  possession  of  the  property.  (Election  of  Remedies,  see 
New  York,  P.).  In  re:  Rector's,  220  Fed.  645;  In  re:  Ward, 
220  Fed.  645. 


O.     RETAILER. 

Consignment,  What  Constitutes  Valid  as  to  Third  Parties. 

A  piano  was  delivered  in  New  York  under  an  agreement 
stating  that  same  was  consigned,  and  was  to  remain  the  prop- 


3l6  CONDITIONAL  SALES. 

erty  of  the  consignor  until  paid  for  b}^  the  consignee.  Later  on 
the  consignee  signed  a  note  covering  the  agreed  purchase  price 
of  the  piano,  and  on  such  note  was  a  clause  that  title  should  not 
pass  until  payment  in  full.  The  consignee  was  a  dealer  in 
pianos  at  Lockport,  N.  Y.  and  it  was  agreed  between  the  con- 
signor and  the  consignee  that  such  piano  might  be  sold  by  the 
consignee,  who  should  remit  the  proceeds  of  such  sale,  suf- 
ficient to  pay  the  note,  or  if  the  purchaser  gave  a  note  for  part 
of  the  price,  said  note  was  to  be  turned  over  to  the  consignor. 
The  piano  was  not  paid  for  and  it  was  not  sold  to  a  third  per- 
son, but  while  in  the  possession  of  the  retail  dealer  same  was 
levied  upon  under  execution  issued  against  the  retailer.  Before 
and  at  the  sale  so  made  under  the  execution,  the  sheriff  was 
notified  that  the  wholesalers  claimed  the  piano  and  a  demand 
was  made  upon  the  sheriff  for  its  possession  and  he  was  for- 
bidden to  sell  it.  The  piano  was,  however,  sold  under  the  execu- 
tion. An  action  was  then  brought  by  the  wholesalers  against 
the  sheriff  for  damages. 

Held :  The  whole  transaction  evidenced  a  consignment 
and  not  a  sale,  either  absolute  or  conditional ;  that  the  sheriff 
was  not  a  bona  fide  purchaser  and  the  seizure  and  sale  by  him 
was  unlawful.  The  wholesaler  was  permitted  to  recover. 
(Legal  Status,  see  New  York,  A.).  Cole  et  al  v.  Mann,  62  N, 
Y.  I. 

A  firm  located  at  Utica,  N.  Y.,  manufactured  harnesses. 
This  firm  placed  such  harnesses  with  persons  called  agents, 
who  were  in  fact  retail  dealers  of  such  goods,  and  the  agree- 
ments, in  such  instances,  between  the  parties  were  in  writing 
(see  contract  in  full  in  opinion).  This  contract  provided  in 
substance,  that  title  to  all  goods  so  delivered  should  remain 
in  the  manufacturer  until  paid  for;  that  the  retailer  should  re- 
ceive as  his  compensation,  all  sums  he  took  in  on  the  sale  of 
the  property  over  and  above  certain  fixed  prices.  He  was  to 
hold  all  money  received  for  the  benefit  of  the  manufacturer. 
There  was  no  agreement  that  the  retailer  should  keep  and  pay 
for  any  goods  which  he,  himself  had  not  already  sold.     This 


NEW  YORK.  317 

contract  was  not  filed  for  record,  and  a  retail  merchant  in 
Rochester  who  had  a  considerable  number  of  harnesses  on 
hand  under  such  an  agreement,  turned  them  over  to  a  whole- 
sale wagon  manufacturing  company,  whose  wagons  the  said 
retailer  had  been  selling  and  had  thus  become  indebted  to  the 
wagon  company.  The  consideration  for  such  transfer  of  the 
harnesses  was  a  pre-existing  debt,  and  a  promise  by  the  wagon 
company  to  pay  certain  notes  upon  which  the  retailer  was 
liable.  Under  these  facts  the  original  owner  of  the  harnesses 
brought  replevin  action  against  the  wagon  company  to  recover 
this  property. 

Held:  Such  recovery  could  be  had  as  the  harnesses  had 
been  delivered  on  consignment  to  the  retailer,  who  could  pass 
no  title  to  a  third  person  under  the  facts  as  above  stated.  Childs 
&  Co.  V.  Waterloo  Wagon  Co.,  37  A.  D.  242,  57  N.  Y.  S.  520. 


Consignment  Valid  in  New  York  as  against  Trustee  in  Bank- 
ruptcy. 

A  paint  manufacturing  company  located  in  Ohio  had  an 
arrangement  with  a  firm  doing  business  at  Utica,  New  York, 
whereby  paint  was  delivered  to  the  New  York  firm  under  sub- 
stantially the  following  facts :  A  stock  of  paint  was  sent  to 
Utica,  the  manufacturer  paying  the  freight.  The  paints  while 
in  the  possession  of  the  New  York  firm  were  kept  insured  by 
the  original  owner.  Both  the  paint  company  and  the  New  York 
firm  had  the  right  to  sell  from  this  stock,  and  the  price  was 
fixed  by  the  original  owner  of  the  paint.  The  hardware  com- 
pany was  not  obligated  to  purchase  any  portion  of  this  paint, 
but  made  sales  and  received  as  their  compensation  ten  per 
cent  of  the  selling  price.  Goods  were  sold  from  this  stock  by 
the  original  owner,  and  were  shipped  out  upon  its  order  by  the 
hardware  company,  and  the  hardware  company  received  eight 
per  cent  upon  such  sales  made.  At  the  end  of  each  year  a 
settlement  was  eflfected  between  the  parties  interested,  the 
hardware  company  paying  the  amount  it  owed  for  goods  which 


3l8  CONDITIONAL  SALES. 

had  been  sold  and  receiving  its  commissions.  The  hardware 
company  never  paid  for  any  stock  of  paint  received,  except 
after  sales  had  been  made  out  of  the  stock  on  hand.  Such 
hardware  company  became  bankrupt,  and  on  the  same  day  that 
the  adjudication  was  made  several  thousand  dollars  worth  of 
this  paint  was  turned  over  to  the  paint  company,  its  original 
owner.  This  paint  company  later  on  sought  to  prove  a  claim 
in  bankruptcy  for  the  paint  it  had  not  been  paid  for,  and  this 
claim  was  rejected  by  the  trustee  on  the  ground,  that  the  tak- 
ing back  of  the  paint  in  question  had  constituted  a  preference 
to  said  paint  company,  and  their  claim  upon  the  unsecured  debt 
could  not  be  proved  in  bankruptcy  until  they  had,  either  re- 
turned the  paint  in  question,  or  paid  its  value  to  the  trustee. 

Held :  The  whole  transaction  constituted  a  consignment ; 
that  no  conditional  sale  was  contemplated,  or  executed,  and  re- 
possession of  the  paint  in  question  did  not  constitute  a  prefer- 
ence, for  which  reasons  the  unsecured  debt  in  question  could  be 
proved  in  the  bankruptcy  proceeding  without  making  a  refund. 
In  re:  Wright  Dana  Hdw.  Co.,  211  Fed.  908;  In  re:  Hamil, 
236  Fed.  292. 

Right  to  Change  Character  of  Property  does  not  Invalidate 
Contract. 

Prentiss  Tool  &  Supply  Co.  v.  Schirmer  etc.  (discussed  in 
New  York,  A.),  136  N.  Y.  305. 

Consignment  Valid  Between  Parties  Thereto. 

An  action  was  brought  to  recover  for  notes  given  on  ac- 
count of  lumber  shipped,  also  to  recover  for  balance  unpaid  on 
such  lumber,  for  which  no  notes  were  ever  given,  and  also  to 
recover  for  discounts  paid  on  notes  that  were  renewed,  and  also 
to  recover  for  money  paid  as  freight  upon  the  lumber  so  deliv- 
ered. The  main  defense  was  to  the  effect  that  under  the  agree- 
ment between  the  parties,  the  action  in  question  should  have 
been  for  an  accounting  and  not  for  a  money  judgment.     The 


NEW  YORK.  319 

contention  being  that  the  relation  between  the  parties  was 
essentially  that  of  principal  and  agent.  The  lumber  in  ques- 
tion was  shipped  under  a  contract  (full  text  in  the  opinion). 
This  agreement  provided  in  substance  that  the  lumber  was  to 
be  delivered  by  a  wholesaler  to  a  retailer,  and  could  be  sold  by 
such  retailer  in  the  ordinary  course  of  trade;  that  title  to  all 
lumber  not  sold  v.as  retained  in  the  wholesaler  until  paid  for, 
that  the  proceeds  of  all  sales  made  by  the  retailer  should  be 
and  remain  the  property  of  the  wholesaler  until  the  whole 
amount  of  lumber  shipped  had  been  paid  for  in  full.  It  further 
provided  that  all  sums  of  money  received  by  the  retailer  for 
the  lumber  sold  by  him  should  be  held  by  the  retailer  for  the 
wholesaler,  until  all  lumber  which  had  been  sold  had  been 
paid  for  in  full.  That  all  claims  and  demands  arising  from  the 
sale  of  such  lumber  by  the  retailer  should  be  and  remain  the 
property  of  the  wholesaler,  until  all  the  indebtedness  from  the 
said  retailer  to  the  said  wholesaler  on  account  of  lumber  to  be 
so  delivered  had  been  fully  discharged.  No  rights  of  third 
parties  intervened  in  this  transaction  in  any  way.  It  was  held, 
that  an  action  for  money  had  and  received  could  be  main- 
tained and  that  it  was  not  necessary  to  bring  an  action  for  an 
accounting.  The  import  of  this  decision  seems  to  have  been 
that  the  contract  as  made  was  valid ;  that  the  proceeds  from  all 
sales  as  made  actually  belonged  to  the  wholesaler  until  his  full 
indebtedness  had  been  settled,  and  as  he  had  not  been  paid  in 
full  the  judgment  in  his  favor  was  aflfirmed.  Weston  v.  Brown. 
158  N.  Y.  360,  53  N.  E.  36. 

Conditional  Sale,  What  Constitutes  Valid  as  to  Third  Parties. 

The  owner  of  a  stock  of  goods  in  a  store  sold  same  to  his 
son  and  the  contract  provided  that  title  thereto  should  remain 
in  the  father  until  full  j^ayment  had  been  received.  It  was 
further  ])rovided  that  the  son  should  have  the  right  to  sell  these 
goods  in  the  ordinary  course  of  trade.  It  was  further  provided 
that  all  new  goods  purchased  by  the  son  were  to  take  the  place 
of  those  which  had  been  sold  by  him  and  title  thereto  was  to 


•320  CONDITIONAL  SALES. 

be  held  by  the  father  until  full  payment  was  made.  Under  such 
arrangement  a  part  of  the  original  stock  was  sold  by  the  son 
and  new  goods  were  purchased  by  him  and  placed  in  the  store. 
This  situation  continued  for  nearly  one  year,  at  which  time  the 
father  took  possession  of  all  the  goods  in  the  store  under  his 
contract  and  was  engaged  in  the  making  of  an  inventory,  when 
the  entire  stock  was  levied  upon  under  execution  on  a  judgment 
secured  against  the  son.  The  father  brought  action  against 
the  sheriff  to  recover  the  value  of  all  the  goods  so  levied  upon. 
The  principal  defense  was  that  these  goods  were  in  the  hands 
of  the  son  under  conditional  sale  contract,  which  permitted  him 
to  dispose  of  them  in  the  ordinary  course  of  trade.  It  was 
claimed  that  under  such  arrangement  a  fraud  had  been  com- 
mitted as  against  the  creditors  of  the  son  which  caused  title 
of  all  the  goods  in  question  to  pass  to  the  son  and  that  the  levy 
as  made  was  valid. 

Held :  Such  father  had  actually  taken  possession  of  these 
goods  under  his  contract  prior  to  the  levy  made  and  there  be- 
ing no  actual  fraud  found  surrounding  the  transaction,  by 
which  the  father  took  the  goods  back,  therefore,  the  son  had 
no  title  or  interest  therein  at  the  date  when  levy  was  made,  for 
which  reasons  father  could  recover  as  against  the  sheriff. 
Powell  V.  Preston,  i  Hun.  513. 

Where  agricultural  implements  had  been  delivered  to  an 
agent  for  sale  the  contract  made  the  agent  liable  to  pay  for  all 
machines  not  sold  by  a  certain  day.  This  payment  to  be  made 
by  satisfactory  note  with  indorser,  or  by  a  lien  upon  the  ma- 
chines. Some  of  the  machines  were  not  sold  by  the  day  named, 
and  the  agent  gave  his  note  to  cover  the  price  of  these,  but 
without  an  indorser.  Later  the  note  was  renewed,  and  a  paper 
was  executed  by  the  agent  stating  in  effect,  that  title  to  said 
machines  did  not  pass  from  the  original  owner,  until  the  note 
or  notes  were  paid.  A  sheriff  levied  execution  upon  the  ma- 
chines in  the  agent's  possession  and  sold  same,  after  which  the 
original  vendor  sued  such  sheriff  in  conversion  to  recover  their 
value. 


NEW  YORK.  321 

Held:  Title  had  not  passed  to  the  agent,  that  the  sheriff 
was  not  a  bona  fide  purchaser  of  the  machines  and  the  original 
owner  could  recover.    Nash  v.  Weaver,  23  Hun.  513. 

The  contents  of  a  grocery  store  in  Brooklyn  were  sold  un- 
der conditional  sale  contract  (contract  in  full  in  opinion).  It 
was  provided  in  substance  that  title  to  such  goods  should  not 
pass  until  paid  for  in  full ;  that  such  goods  as  were  sold  should 
be  replaced  with  others,  and  that  the  proceeds  of  all  sales  should 
be  paid  over  by  vendee  to  vendor  until  the  debt  was  settled  in 
full.  This  contract  was  never  filed  for  record,  and  the  property 
covered  by  it  was  levied  upon  under  execution  secured  against 
the  vendee.  The  original  vendor  brought  action  against  the 
officer  who  levied  such  execution  to  recover  possession  of  the 
articles  in  question.  The  main  point  at  issue  was  as  to  whether 
or  not.  under  such  an  agreement,  there  was  necessity  for  its 
having  been  filed  as  against  an  execution  creditor.  It  was 
held  that  the  contract  was  a  conditional  sale ;  that  no  filing 
thereof  was  required  as  against  an  execution  creditor  of  the 
vendee,  for  which  reason  the  original  vendor  could  recover. 
Judgment  at  the  trial  had  been  in  favor  of  the  defendant  and 
this  judgment  was  reversed.  (Legal  Status,  see  New  York, 
A.).    Fennikoh  v.  Gunn,  59  A.  D.  132,  69  N.  Y.  S.  12. 

Under  an  agreement  called  a  consignment  cigars  were  fur- 
nished by  a  wholesaler  to  a  retailer.  This  contract  obligated 
the  retailer  to  pay  for  the  cigars  which  were  shipped  to  him. 
All  accounts  for  sales  made  by  the  retailer  were  to  be  the  prop- 
erty of  the  wholesaler  until  all  goods  were  paid  for  by  the  re- 
tailer, at  the  prices  which  had  been  mutually  agreed  upon  un- 
der this  contract.  A  quantity  of  cigars  were  delivered  to  the 
retailer  and  all  were  sold.  A  controversy  existed  between  the 
parties  concerning  a  prior  indebtedness  and  it  became  neces- 
sary to  bring  an  action  to  enforce  payment.  In  this  action  a 
consideration  of  the  contract  in  question  was  made  by  the  court 
and  it  was  held  to  be  a  conditional  sale  agreement  and  not  a 
consignment.  No  rights  of  third  parties  intervened  and  the 
holding  was  that  the  wholesaler  became  entitled  to  receive  pay- 


322  CONDITIONAL  SALES. 

ment  for  the  balance  due  him.     Smith  v.  Williams,  90  A.  D, 
507,  85  N.  Y.  S.  506. 

Conditional  Sale  Contract  with  Retailer  Invalid  as  to  Third 
Parties. 

The  owner  of  a  store  used  for  the  purpose  of  conducting  a 
liquor  business  arranged  with  a  tenant  whereby  such  tenant 
was  to  have  possession  of  the  store  and  fixtures.  The  said  fix- 
tures were  not  to  become  the  property  of  the  tenant  until  paid 
for.  In  this  store  was  a  stock  of  liquors  and  said  stock  was 
passed  over  to  the  tenant  under  an  agreement  that  title  thereto 
should  remain  in  the  original  owner  until  paid  for.  The  tenant 
was,  however,  to  have  the  privilege  of  selling  such  liquors  in  the 
ordinary  course  of  trade.  After  this  arrangement  had  gone  into 
efifect  and  the  tenant  was  in  possession  of  all  the  property 
above  described,  an  attachment  issued  against  him  was  levied 
upon  all  the  fixtures,  and  upon  the  balance  of  the  liquors  which 
remained  unsold.  Later  on  a  judgment  in  such  attachment  suit 
was  rendered  and  execution  issued,  levy  made  and  the  property 
advertised  and  sold.  Thereafter  the  original  owner  of  the  fix- 
tures, and  the  liquor,  brought  action  against  the  officers  and 
others  so  executing  the  court  mandates  to  recover  damages.  It 
was  held  he  could  recover  for  the  store  fixtures  as  title  to  these 
had  never  passed  to  the  tenant.  (At  this  time,  1875,  conditional 
sale  contracts  were  not  required  to  be  filed).  As  to  the  stock 
of  liquors  in  question  it  was  held  that  an  attempt  had  been  made 
to  transfer  these  to  the  tenant  by  a  conditional  sale  contract, 
and  this  transfer  being  to  a  retailer  for  the  purpose  of  sale  in 
the  ordinary  course  of  trade  was  void,  wherefore  the  seizure 
and  sale  of  such  liquors  was  valid.  Recovery  was  allowed  for 
the  value  of  the  fixtures  with  damages  for  seizing  same,  but  a 
recovery  was  denied  as  to  the  liquors  in  question.  Devlin  v. 
O'Neill,  6  Daly  305 ;  Affirmed  without  opinion,  68  N.  Y.  622. 

Action  was  brought  against  a  sheriff  to  recover  for  the 
value  of  wagons  which  he  had  seized  and  sold  under  execution. 
These  wagons  had  been  shipped  by  a  wholesaler  to  a  firm  sell- 


NEW  YORK.  323 

iiig  wagons  at  retail.  It  was  provided  that  where  wagons  were 
sold  for  cash  retailers  were  to  pay  for  same  at  once,  and  if  sold 
on  time,  where  notes  were  taken  these  notes  were  to  be  in- 
dorsed by  the  retailers  and  forwarded  at  once  to  the  wholesalers. 
The  retailers  agreed  to  keep  the  wagons  insured  and  it  was  fur- 
ther provided  that  on  all  wagons  remaining  unsold  after  twelve 
months  from  date  of  invoice,  these  were  to  be  paid  for  by  the 
retailer.  The  court  directed  a  verdict  for  the  defendant  on  the 
theory  that  the  whole  transaction  constituted  a  purchase  by  the 
retailers  from  the  wholesalers  and  did  not  create  an  agency  to 
sell  on  a  commission ;  that  title  to  the  wagons  had  passed  to 
the  retailers,  and  the  wholesaler  had  no  title  or  rights  thereto. 
This  judgment  was  affirmed  on  appeal  establishing  the  fact  that 
such  goods  having  been  shipped  by  a  wholesaler  to  a  retailer 
for  sale  in  the  ordinary  course  of  trade,  then  an  instrument  such 
as  this  which  did  not  evidence  a  consignment  was  of  no  force 
or  effect  as  against  the  execution  creditors  of  the  retailer.  Fish 
V.  Benedict,  74  N.  Y.  613. 

At  a  time  when  conditional  sale  contracts  were  not  required 
to  be  filed  in  New  York  for  any  purpose,  certain  liquors  were 
delivered  by  a  wholesaler  to  a  retail  dealer.  It  was  agreed  the 
retailer  should  have  the  right  to  sell  such  liquors  in  the  ordin- 
ary course  of  trade,  and  it  was  further  provided  that  the  liquor 
in  question  should  remain  the  property  of  the  wholesaler  until 
paid  for  in  full.  A  portion  of  such  liquors  were  sold  by  the  re- 
tailer in  the  ordinary  course  of  his  business.  The  balance  was 
levied  upon  under  execution  against  him.  and  the  wholesaler 
brought  an  action  in  trover  against  the  constable  who  had  made 
the  levy.  By  such  action  the  wholesaler  sought  to  recover  the 
value  of  the  liquors  which  had  been  levied  upon.  The  main 
defense  rested  upon  the  principal,  that  as  all  the  liquors  deliv- 
ered had  been  placed  with  the  retailer  for  the  purpose  of  sell- 
ing in  the  ordinary  course  of  trade,  the  retention  of  title  therein 
was  a  fraud  upon  the  creditors  of  the  retailer.  That  under  such 
contract  absolute  title  had  passed  to  the  retailer,  so  far  as  exe- 
cution creditors  were  concerned,  and  even  though  a  portion  of 


324  CONDITIONAL  SALES. 

the  liquors  had  not  been  sold  the  wholesaler  was  not  entitled  to 
recover  their  value  from  the  constable  under  the  facts. 

Held :  This  defense  was  valid  as  the  transaction  did  not 
constitute  a  consignment,  but  did  evidence  a  conditional  sale 
contract.  It  was  stated  that  as  to  all  those  liquors  which  had 
been  sold  to  third  persons,  title  had  passed  to  such  third  per- 
sons, and  as  to  the  liquors  which  remained,  the  attempt,  under 
such  circumstances,  to  retain  title  in  the  wholesaler  was  fraudu- 
lent and  made  the  contract  of  conditional  sale  void.  A  recov- 
ery under  such  circumstances  as  against  the  constable  was  de- 
nied.    Ludden  v.  Hazen,  31  Barb.  650. 

Where  a  delivery  of  liquors  had  been  made  by  a  whole- 
saler to  a  retailer  and  not  paid  for,  a  portion  of  said  liquors  was 
sold  by  the  retailer,  after  which  an  execution  against  the  said 
retailer  was  levied  upon  the  balance.  The  wholesaler  there- 
after brought  action  against  the  oflEicer  executing  the  execution 
and  joined  also  the  person  in  whose  favor  the  execution  attach- 
ment had  been  entered.  There  was  introduced  in  evidence  a 
written  instrument,  which  on  its  face  indicated  an  absolute 
sale.  The  plaintiffs  claimed  the  right  to  give  parole  evidence 
explaining  this  instrument  with  the  object  of  showing  that  the 
liquors  were  in  fact  delivered  under  an  agreement  whereby 
title  thereto  was  retained  in  the  wholesaler  until  paid  for. 

Held :  Such  evidence  could  not  be  received  and  further  that 
even  though  it  were  admitted,  its  effect  would  be  to  establish 
the  transaction  as  a  conditional  sale,  which  would  be  of  no 
force  or  effect  as  against  an  execution  creditor  of  the  retailer. 
The  plaintiff  was  non-suited  at  the  trial  and  this  judgment  was 
affirmed  upon  appeal.    Bonesteel  v.  Flack,  41  Barb.  435. 

A  hotel  keeper  at  Coney  Island  sold  his  business  to  an- 
other and  at  the  time  of  such  transfer,  the  seller  had  in  his 
possession  three  barrels  of  whiskey.  The  new  purchaser  of 
the  business  agreed  to  keep  this  liquor  and  to  sell  therefrom 
such  amounts  as  his  trade  called  for.  When  sales  had  been 
made  he  promised  and  agreed  to  pay  for  such  liquor  as  was 


NEW  YORK.  .  325 

used.  The  balance  of  the  liquor  was  to  be  and  remain  the 
property  of  the  original  owner.  Under  such  circumstances,  one 
barrel  or  a  little  more  of  the  whiskey  was  sold  by  the  new  pur- 
chaser, the  balance  was  levied  upon  under  execution  issued 
against  the  said  new  proprietor^  and  while  this  liquor  was  in 
possession  of  the  officer  under  said  levy,  the  original  owner 
brought  replevin  action  against  him  to  recover  possession. 

Held :  The  facts  concerning  the  transfer  of  this  liquor 
constituted  a  conditional  sale  agreement  between  the  original 
owner  of  the  hotel  and  the  person  who  bought  said  hotel  from 
him ;  that  as  the  liquor  was  to  be  sold  by  a  retailer  in  the  or- 
dinary course  of  trade  and  a  portion  of  it  had  been  so  sold, 
therefore  the  whole  transaction  was  fraudulent  as  to  creditors 
of  the  conditional  vendee,  for  which  reason  the  action  in  re- 
plevin against  the  officer  could  not  be  maintained.  Cook  v. 
Gross,  60  A.  D.  446,  69  N.  Y.  S.  924. 

An  agreement  was  made  between  a  wholesale  flour  dealer 
and  a  baker,  whereby  flour  was  placed  in  the  possession  of  the 
baker  in  quantities.  The  baker  was  to  have  the  right  of  using 
from  such  stock  of  flour,  from  time  to  time,  such  amounts  as  he 
needed  in  the  conduct  of  his  business.  The  title  to  such 
flour  was  to  remain  in  the  wholesaler  until  used  and  such  por- 
tions as  were  used  were  to  be  paid  for  at  once  after  such  use. 
The  contract  was  to  cover  all  future  deliveries,  and  a  copy  of 
said  contract  was  properly  filed.  Fifteen  barrels  of  such  flour 
were  levied  upon  in  the  hands  of  the  baker,  under  an  execution 
issued  upon  a  judgment  against  him.  The  wholesaler  replev- 
ined  this  flour  from  the  officer  who  made  the  levy  and  from  a 
judgment  in  favor  of  plaintiff  defendant  officer  appealed. 

Held:  The  judgment  must  be  reversed,  as  a  conditional 
sale  contract  could  not  cover  future  deliveries  of  property  not 
in  being,  but  each  quantity  so  delivered  must  be  the  subject  of 
a  separate  instrument.  Further,  it  was  held  the  flour  was  to  be 
used  by  the  baker  for  consumption  in  the  regular  course  of  his 
business,  which  made  the  contract  void.  It  was  stated,  how- 
ever, that  a  conditional  sale  contract,    not    invalid    for    other 


326  CONDITIONAL  SALES. 

reasons  would  be  valid  as  against  judgment  creditors.  (Legal 
Status,  see  New  York,  A.),  Scherl  v.  Flam,  129  A.  D.  561,  114 
N.  Y.  S.  86. 

This  case  was  later  appealed  twice  with  the  result,  that 
the  officer  was  declared  to  have  made  a  valid  levy  and  the 
wholesaler  was  not  entitled  to  recover.  133  A.  D.  274,  117  N. 
Y.  S.  654,  136  A.  D.  753,  121  N.  Y.  S.  522. 

See  also.  Sanitary  Carpet  Cleaner  v.  Reed  Mfg.  Co.,  159 
A.  D.  587,  145  N.  Y.  S.  218. 

Conditional  Sale  Contract  to  Retailer  Void  as  to  Trustee  in 
Bankruptcy. 

Woolen  cloth  in  bolts  was  sold  to  a  retail  merchant  in  New 
York  for  the  purpose  of  being  again  sold  by  him  in  the  usual 
course  of  trade.  Title  thereto  was  retained  in  vendor  until  paid 
for  or  sold,  and  the  retailer  was  liable  for  the  price  of  all  goods 
received  by  him  unless  the  wholesaler  at  its  option  saw  fit  to 
repossess  some  portions  thereof.  Some  of  these  goods  were 
sold  in  the  usual  course  of  trade,  and  a  quantity  remained  on 
hand  when  such  retailer  was  declared  bankrupt.  Vendor  peti- 
tioned for  return  of  the  goods  still  on  hand,  and  it  was  held, 
as  the  cloth  had  been  delivered  under  conditional  sale  contract 
.  to  a  retailer  for  the  purpose  of  resale  in  the  usual  course  of 
trade,  therefore  title  absolute  had  passed  to  him  so  far  as  his 
creditors  were  concerned,  that  a  trustee  in  bankruptcy  repre- 
sented the  creditors,  and  no  recovery  by  the  original  vendor 
could  be  allowed.     In  re :  Rowland,  109  Fed.  869. 

Certain  goods  in  the  way  of  shirts  and  collars  were  deliv- 
ered to  bankrupt  under  the  agreement,  title  should  remain  in 
vendor  until  property  was  paid  for.  After  the  adjudication  in 
bankruptcy  vendor  filed  petition  for  the  balance  of  this  stock 
of  goods  on  hand.  The  facts  do  not  show  any  written  contract 
between  parties.  The  case  was  decided  by  the  District  Court  in 
favor  of  the  petitioner's  contention,  but  the  Circuit  Court  said 
the  transaction  was  fraudulent  on  its  face,  in  that  an  attempt 


NEW  YORK.  327 

was  made  to  retain  title  to  the  goods,  a  portion  of  which  at 
least,  the  vendor  knew  from  the  nature  of  the  business  con- 
ducted by  the  vendee,  were  to  be  sold  and  disposed  of.  It  was 
therefore  held,  on  account  of  the  effect  of  such  fraud,  that  ven- 
dors could  not  recover  the  balance  of  property  still  in  posses- 
sion of  the  bankrupt,  and  which  had  passed  to  his  trustee.  This 
statement  was  made  in  the  opinion.  "When  the  property  is  de- 
livered to  vendee  for  consumption,  or  sale  or  to  be  dealt  with 
in  any  way  inconsistent  with  the  ownership  of  the  seller,  or  is 
to  be  destroyed,  his  right  or  lien  on  property  transferred  can- 
not be  upheld  as  the  conditional  sale  is  fraudulent  upon  the 
creditors  of  the  vendee."    In  re:  Garcewich,  115  Fed.  87. 

Buggies  were  delivered  in  New  York  to  a  retail  dealer 
therein  for  the  purpose  of  resale.  The  contract  retained  title 
thereto  in  the  original  owner  until  paid  for,  or  sold,  and  in  case 
of  sale  the  merchant  was  to  hold  all  proceeds  in  trust  until  the 
purchase  price  of  all  the  wagons  delivered  to  him  was  paid  in 
full,  and  he  was  obligated  to  make  such  payment.  This  con- 
tract was  not  filed,  and  when  the  retailer  became  bankrupt  sev- 
eral of  the  buggies  were  still  in  his  possession  unsold.  Petition 
was  presented  to  the  bankruptcy  court  asking  for  return  of 
such  buggies,  and  the  relief  was  denied  upon  the  ground,  that 
an  attempt  to  retain  title  in  goods  placed  with  a  retailer  for  sale 
in  the  usual  course  of  trade,  where  the  merchant  is  obligated  to 
pay  therefor,  is  void  as  to  the  trustee  in  bankruptcy  of  such  re- 
tailer. This  rule  was  stated  to  apply  even  though  the  contract 
was  filed  as  provided  by  New  York  law.  In  re :  Carpenter, 
125  Fed.  831. 

Buggies  were  delivered  in  New  York  by  a  manufacturer 
to  an  individual  and  title  thereto  was  retained  in  the  manufac- 
turer until  paid  for.  It  was  further  provided  in  substance,  and 
it  was  so  understood  by  the  parties,  that  such  buggies  might  be 
sold  in  the  regular  course  of  trade  by  the  individual,  and  that 
all  buggies  on  hand,  and  the  proceeds  of  all  which  were  sold, 
whether  in  cash,  notes,  or  book  accounts,  should  be  held  as  col- 
lateral securitv  in  trust  for  the  benefit  of  the  manufacturer  un- 


328  CONDITIONAL  SALES. 

til  the  full  indebtedness  was  paid.  This  contract  was  not  filed 
as  provided  by  New  York  law,  and  the  individual  became 
bankrupt  after  having  sold  five  of  the  twenty  buggies  delivered. 
Fifteen  of  the  buggies  were  on  hand  at  the  time  of  bankruptcy 
and  passed  into  the  possession  of  the  trustee.  The  manufac- 
turer petitioned  for  return  of  these  fifteen  buggies,  and  the  re- 
lief demanded  was  denied  upon  the  ground,  that  as  it  was  un- 
derstood the  buggies  were  to  be  sold  at  retail  in  the  usual 
course  of  trade,  and  as  the  contract  did  not  provide  directly 
that  the  proceeds  of  all  sales  made  should  belong  to  and  be  paid 
over  to  the  manufacturer  until  all  indebtedness  was  paid,  the 
contract  was  void  as  to  creditors  represented  by  the  trustee  in 
bankruptcy.    Pontiac  Buggy  Co.  v.  Skinner,  158  Fed.  858. 

P.     ELECTION  OF  REMEDIES. 

Property  Retaken  Amounts  to  an  Election. 

Where  personal  property  had  been  delivered  in  New  York 
City  under  conditional  sale  contract,  the  vendee  defaulted,  and 
vendors  took  possession  of  the  property,  and  sold  same  to  a 
third  person  giving  a  bill  of  sale  thereof  in  which  a  covenant  of 
title  by  the  vendors  was  made.  The  property  was  not  held 
thirty  days  and  was  not  advertised,  and  was  not  sold  at  public 
auction.  The  amount  so  obtained  was  not  suflficient  to  pay  the 
debt  arising  under  the  original  conditional  sale  contract  given, 
whereupon  the  original  vendors  sought  to  have  foreclosed  a 
chattel  mortgage  held  by  them  as  collateral  security.  Action 
was  brought  to  restrain  such  foreclosure  upon  the  ground,  that 
by  retaking  and  reselling  such  property  as  had  been  done,  the 
consideration  for  the  mortgage  had  failed.  So  held.  Earl  v. 
Robinson,  91  Hun.  363,  36  N.  Y.  S.  178;  Affirmed,  157  N.  Y. 
683. 

Vendor  Cannot  Retake  Property  and  Sue  for  Purchase  Price. 

A  vendor  of  personal  property  under  conditional  sale  con- 
tract, cannot  retake  possession  absolutely  of  such  property  and 


NEW  YORK.  329 

thereafter  sue  for  the  balance  of  the  purchase  price,  nor  can 
he  counterclaim  such  balance  in  an  action  brought  against  him 
by  the  vendee  for  damages.  Under  such  circumstances  the 
consideration  for  such  indebtedness  is  deemed  to  have  failed 
because  the  conditional  sale  contract  has  been  rescinded.  So 
held  in  an  action  involving  a  conditional  sale  contract  for  a 
threshing  machine.  White  v.  Gray's  Sons,  96  A.  D.  154,  89  N. 
Y.  S.  481. 

A  machine  was  delivered  in  New  York  under  oral  con- 
tract, with  a  definite  date  fixed  upon  which  payment  of  the  pur- 
chase price  was  to  be  made.  The  payment  was  not  made  and 
the  parties  then  entered  into  a  written  contract  of  conditional 
sale  for  the  property.  Several  months  thereafter,  the  machine 
not  having  been  paid  for,  another  contract  in  writing  was  made 
between  the  same  parties,  stating  that  the  machine  had  been 
bought  by  the  vendee  and  would  be  paid  for  and  providing  for 
the  giving  of  notes.  It  was  further  provided  that  the  con- 
ditional sale  contract  theretofore  made  should  continue  in  force. 
Notes  were  then  given.  Vendor  sued  vendee  upon  the  second 
note  which  matured  in  the  series,  and  after  the  action  was  be- 
gun took  possession  of  said  machine,  sold  it  (does  not  state  in 
what  manner),  and  applied  the  avails  of  such  sale  upon  two 
subsequent  notes.  These  facts  were  brought  in  by  supple- 
mental pleading. 

Held :  There  had  been  an  election  of  remedies  by  vendor, 
that  he  had  taken  the  property,  had  thereby  rescinded  the  con- 
tract of  conditional  sale  and  could  not  recover.  Cooper  v. 
Payne,  iii  A.  D.  785,  97  N.  Y.  S.  863.  See  same  case,  103  A.  D. 
118,  93  N.  Y.  S.  69;  Affirmed,  186  N.  Y.  334,  78  N.  E.  1076; 
Nel5<on  V.  Gibson  fdiscussed  in  New  York,  S.),  143  A.  D.  894. 


Retaking  Property  not  Always  Election. 

Equitable  General  Providing  Co.  v.  Potter,  (discussed  in 
New  York,  S.),  22  Misc.  124,  48  N.  Y.  S.  647;  Equitable  Gen- 
eral  Providing  Co.  v.  Eisentrager,   (discussed  in  New  York, 


330  CONDITIONAL  SALES. 

S.),  34  Misc.  179,  68  N.  Y.  S.  866;  National  Cash  Register  Co. 
V.  Coleman  (discussed  in  New  York,  A.),  85  Hun.  125. 

Mechanic's  Lien  Filed  is  Election. 

Kirk  V.  Crystal  (discussed  in  New  York,  L.),  193  N.  Y. 
622. 

An  automatic  sprinkler  system  was  installed  in  a  manu- 
facturing plant  in  Brooklyn,  New  York.  Title  to  such  fittings 
was  retained  in  the  vendor  until  paid  for  in  full.  The  contract 
was  never  filed  for  record  as  provided  by  Section  62  Personal 
Property  Law.  The  system  was  completely  installed  on  No- 
vember I,  1913.  On  November  23,  1913,  vendee  gave  a  large 
real  estate  mortgage  upon  the  plant,  and  within  the  time  al- 
lowed by  law,  the  vendor  of  the  sprinkler  system  filed  a  me- 
chanic's lien  on  the  plant  for  the  balance  unpaid  to  it.  The 
vendee  thereafter  became  bankrupt,  and  the  sprinkler  company 
filed  a  petition  asking  for  return  of  its  property  or  payment  in 
full.  The  question  as  to  filing  or  non-filing  of  the  contract  of 
conditional  sale  was  not  considered,  as  it  was  held,  the  filing  of 
a  mechanic's  lien  upon  the  premises  in  question  was  an  elec- 
tion of  remedies,  which  precluded  the  said  vendee  from  after- 
ward claiming  title  under  its  conditional  sale  contract.  It  was 
however,  held,  that  under  the  mechanic's  lien  as  filed  the  said 
vendor  became  a  secured  creditor.  In  re:  Levin,  Kronenberg 
&  Co.,  220  Fed.  451;  In  re:  Automatic  Sprinkler  Company  of 
America,  220  Fed.  451. 

Judgment  for  Purchase  Price,  and  Mechanic's  Lien  Filed  Con- 
stitute Election. 

Shipley  Construction  etc.  Co.  v.  Mager,  (discussed  in  New 
York.  L.),  165  A.  D.  866. 

Suit  for  Purchase  Price  is  Election. 

Where  a  piano  had  been  sold  under  conditional  sale  con- 
tract in  writing,  a  portion  of  the  purchase  price  was  paid  in 


NEW  YORK.  331 

cash  and  a  note  was  given  for  the  balance.  Nothing  is  stated 
as  to  whether  or  not  the  contract  in  question  was  filed.  The 
note  became  due  and  vendor  brought  suit  upon  it  for  the  bal- 
ance of  the  purchase  price.  An  answer  was  served  by  the  de- 
fendant, and  while  the  action  was  pending  the  said  defendant, 
vendee,  sold  the  piano  in  question  to  his  wife  by  a  bill  of  sale 
in  writing,  which  recited  payment  of  a  consideration,  which 
was  substantially  the  value  of  the  piano  at  that  date.  After 
this  bill  of  sale  had  been  given,  vendor  discontinued  the  action 
on  the  note,  assigned  the  conditional  sale  contract  to  a  third 
person,  and  such  assignee  took  immediate  possession  of  the 
piano.  Under  such  facts  the  wife  of  the  original  vendee  brought 
action  to  recover  damages  for  conversion  of  the  piano  men- 
tioned. The  question  involved  was,  as  to  whether  or  not  the 
bringing  of  an  action  upon  the  note  by  the  original  vendor  to 
recover  the  balance  of  the  purchase  price,  had  been  an  election 
of  remedies,  which  prevented  either  himself  or  his  assignee 
from  afterwards  seizing  the  piano  under  the  contract.  It  was 
held  there  had  been  such  an  election.  The  judgment  which  had 
been  in  favor  of  the  defendant  was  reversed.  Orcutt  v.  Ricken- 
brodt,  42  A.  D.  238,  59  N.  Y.  S.  1008. 

In  an  action  for  the  possession  of  property  conditionally 
sold,  or  its  value,  vendee  offered  to  prove  that  prior  to  the  com- 
mencement of  such  action  vendor  had  sued  to  recover  upon  a 
promissory  note  given  under  the  contract.  This  evidence  was 
excluded  and  upon  appeal  held,  such  ruling  was  in  error ;  for 
if  the  action  for  a  money  judgment  had  in  fact  been  brought 
there  had  been  an  election  of  remedies  and  the  suit  for  posses- 
sion could  not  be  maintained.  Pels  v.  Oltarsh  Iron  W'orks.  129 
N.  Y.  S.  371. 


Indorsement  of  Notes  is  an  Election  and  Title  Passes. 

In  re:     Rector's,  (discussed  in  New  York,  N.),  220  Fed. 
645- 


332  CONDITIONAL  SALES. 

Suit  for  Purchase  Price  not  an  Election. 

Ratchford  v.  Cayuga  Co.  etc.,  (discussed  in  New  York, 
L.),  217  N.  Y.  565;  Same  effect,  American  Box  Machine  Co.  v. 
Zentgraf,  (discussed  in  New  York^  G.),  45  A.  D.  522. 

A  power  coffee  mill  was  delivered  under  conditional  con- 
tract of  sale  expressly  providing  that  title  should  not  pass  to 
the  vendee  until  "the  purchase  price  or  any  judgment  for  the 
same  is  paid  in  full."  An  action  for  a  money  judgment  under 
the  contract  was  brought  and  judgment  secured  which  was  not 
paid  and  was  not  satisfied.  Action  was  then  brought  for  con- 
version of  the  mill  and  the  defense  was  made  that  plaintiff  had 
elected  in  its  remedies  by  obtaining  the  money  judgment. 

Held :  The  contract  expressly  provided  that  title  should 
not  pass  until  the  property  was  paid  for  in  full  and  as  the  prior 
judgment  had  not  been  paid,  the  conversion  action  was  proper 
and  could  be  maintained.  Hobart  Electric  Mfg.  Co.  v.  Rooder, 
121  N.  Y.  S.  274. 

May  Foreclose  Common  Law  Lien. 

Where  property  has  been  delivered  under  conditional  con- 
tract of  sale  and  the  vendee  defaults,  the  vendor  may  bring  an 
action  to  foreclose  the  lien  under  his  contract,  making  the  party 
in  possession  of  the  property,  as  well  as  the  vendee,  parties  to 
the  action  and  the  judgment  may  provide  for  the  sale  of  the 
property,  and  for  a  deficiency  judgment  against  the  original 
vendee.  Singer  Sewing  Machine  Co.  v.  Leipzig  et  al,  113  N. 
Y.  S.  916. 

Where  property  has  been  sold  under  conditional  sale 
agreement  and  there  has  been  default,  the  vendor  may  bring  ac- 
tion to  foreclose  the  lien  for  the  purchase  price  but  cannot  in- 
clude an  item  for  making  repairs  on  the  property  while  in  the 
vendee's  possession.  Simpson  Crawford  Co.  v.  Knight,  130 
N.  Y.  S.  236;  Same  effect.  Crump  v.  Wissner,  (discussed  in 
New  York,  S.),  163  A.  D.  47;  Bloomingdale  et  al  v.  Braun,  80 
Misc.  527,  141  N.  Y.  S.  590;  Pease  Piano  Co.  v.  Fiske,  145  N. 


NEW  YORK.  333 


Y.  S.  978;  Quattrone  v.  Simon,  85  Misc.  357,  147  N.  Y.  S.  448; 
Hauss  V.  Savarese,  87  Misc.  330,  149  N.  Y.  S.  938. 


Q.     DEFENSES  AND  COUNTERCLAIMS. 

Breach  of  Warranty  is  a  Defense. 

In  an  action  of  replevin  for  a  piano  in  New  York  a  con- 
tract of  conditional  sale  existed,  and  vendor,  plaintiff,  claimed 
default.  Vendee  interposed  an  answer  setting  up  breach  of 
warranty  as  a  defense  by  way  of  recoupment,  and  also  as  a 
counterclaim,  alleging  his  election  both  prior  and  subsequent 
to  the  commencement  of  such  action,  to  accept  and  retain  the 
piano  thereby  claiming  to  affirm  the  sale.  These  defenses  were 
demurred  to.  It  was  conceded  that  under  the  common  law  and 
prior  to  the  amendment  of  the  Personal  Property  Law  (Con- 
solidated Laws,  Chap.  41;  Laws  of  1909,  Chap.  45)  by  Chap. 
571  of  the  Laws  of  191 1,  by  adding  thereto  a  new  article  5  en- 
titled "Sales  of  Goods,"  such  right  of  counterclaim,  set  ofif,  or 
recoupment,  did  not  exist  in  this  state,  and  further  that  vendee 
could  not  have  maintained  an  independent  action  for  damages 
under  such  facts  prior  to  the  enactment  of  such  law.  (The 
above  is  §  150,  Personal  Property  Law). 

Recoupment  and  set  off  are  discussed  and  declared  to  be 
limited  by  the  amount  demanded  by  plaintiff.  Counterclaim 
is  defined  and  its  limits  stated,  to  be  broader  than  recoupment 
or  set  off,  and  not  to  be  confined  in  amount  within  the  de- 
mands made  by  the  complaint.  Decision,  that  recoupment  or 
set  off  are  now  permitted  to  defendant  as  a  defense  in  an  ac- 
tion of  replevin  under  conditional  sale  contract,  but  that  coun- 
terclaim is  not.  Peuser  v.  Marsh,  167  A.  D.  604.  i53  N.  Y.  S. 
381 ;  Affirmed,  218  N.  Y.  505.  113  N.  E.  494. 

The  Court  of  Appeals  holds  that  breach  of  warranty  is  a 
,  defense  in  actions  for  the  purchase  price  or  for  possession. 


334  CONDITIONAL  SALES. 

Purchaser  from  Vendee  must  Pay  in  Full,  or  is  not  Bona  Fide. 

A  cash  register  was  sold  in  New  York  under  conditional 
sale  contract  which  was  not  filed.  After  the  vendee  had  been 
in  possession  for  a  period,  he  sold  the  register  to  a  third  per- 
son on  a  conditional  sale  contract.  This  person  had  no  knowl- 
edge of  the  prior  sale,  nor  of  the  contract  which  existed  be- 
tween the  original  vendor  and  the  original  vendee.  After  the 
second  purchaser  had  paid  a  portion  of  the  price  which  he  had 
agreed  to  pay,  notice  was  given  him  of  the  true  situation, 
thereupon  he  refused  to  make  further  payments  and  the  orig- 
inal vendee  took  the  register  back.  Thereafter  the  second  ven- 
dee sued  the  first  vendee  for  damages,  and  to  recoverthe  money 
which  he  had  paid.  At  the  trial  he  was  non-suited  on  the  the- 
ory that  as  the  original  conditional  sale  contract  had  not  been 
filed  at  the  time  when  he  made  his  purchase  from  the  original 
vendee,  therefore  such  sale  to  him  was  absolute  and  he  could 
not  repudiate  it,  and  turn  the  property  back  and  collect  dam- 
ages. Upon  appeal  this  theory  was  not  adopted,  and  the  hold- 
ing was,  by  a  divided  court,  that  under  such  circumstances  a 
purchaser  from  the  original  vendee  did  not  become  a  bona  fide 
purchaser  for  value,  which  meant  an  absolute  purchaser,  until 
he  paid  the  full  purchase  price  agreed  upon,  when  the  sale  was 
made  to  him.  The  judgment  was  reversed.  Bowen  v.  Dawley, 
ii6  A.  D.  568.  loi  N.  Y.  S.  878. 

Party  Claiming  as  Bona  Fide  Purchaser  has  Burden  of  Proof. 

Cutler  Mail  Chute  Co.  v.  Crawford,  (discussed  in  New 
York,  B.),  167  A.  D.  246;  Crocker-Wheeler  Co.  v.  Genesee 
Recreation  Co.,  (discussed  in  New  York,  L.).  160  A.  D.  373. 

Infancy  of  Vendee  no  Defense  to  Replevin. 

Replevin  was  brought  against  an  infant  for  a  sewing  ma- 
chine she  had  purchased  under  a  conditional  contract  of  sale, 
and  the  defense  was  made  that  because  such  vendee  was  under 
age,  the  action  could  not  be  maintained. 


NEW  YORK.  335 

Held :  The  action  was  in  tort  and  could  be  maintained  as 
against  an  infant.  Wheeler  &  Wilson  Alfg.  Co.  v.  Jacobs,  3 
Misc.  236,  21  N.  Y.  S.  1006. 


R.     MEASURE  OF  DAMAGES. 

What  Can  be  Collected  on  Countermand. 

Ackerman  v.  Rubens,  (discussed  in  New  York,  A.),  167 
N.  Y.  405. 

Where  a  piano  was  to  be  delivered  under  contract  called 
a  lease  which  provided  for  payments  of  rent  with  an  option 
to  purchase,  the  vendee  refused  to  accept  same  when  tendered 
and  refused  to  make  the  first  payment.  He  was  sued  by  the 
vendor  to  collect  such  first  payment,  and  the  contract  in  ques- 
tion was  held  to  be  a  conditional  sale  agreement,  and  even 
though  no  delivery  had  been  made,  but  such  delivery  refused 
although  tendered,  still  the  vendor  could  collect  this  instalment 
w^hich  was  past  due,  and  others  as  they  matured.  It  is  implied 
that  he  must  at  all  times  be  ready  and  willing  to  make  deliv- 
ery of  the  piano,  as  it  is  stated  he  could  not  have  the  purchase 
price  and  the  property  at  the  same  time.  It  is  plain  the  court 
regarded  such  vendor  as  holding  the  piano  in  question  as  a 
trustee  or  agent  for  the  vendee.  (Form  of  Contract,  see  New 
York,  B.).    Grey  v.  Booth,  64  A.  D.  231,  71  N.  Y.  S.  1015. 

Full  Price  Cannot  be  Collected  Where  no  Delivery. 

Where  a  person  has  agreed  to  purchase  a  cash  register 
under  conditional  contract  of  sale,  and  countermands  and  re- 
fuses to  accept,  the  vendor's  only  right  of  action  is  to  recover 
the  difference  between  the  contract  price  and  the  value  of  the 
property  at  the  time  and  place  of  delivery  or  tender.  The  ven- 
dor cannot  sue  for  the  full  contract  price.  National  Cash  Regis- 
ter Co.  v.  Schmidt,  48  A.  D.  472,  62  N.  Y.  S.  952. 


336  CONDITIONAL  SALES. 

Balance  Unpaid  is  Amount  Recoverable. 

Duntz  V.  Granger  Brewing  Co.,  (discussed  in  New  York, 
L.),  184  N.  Y.  595;  See  41  Misc.  177. 


Conversion  will  not  Lie  Where  Property  Stolen,  Vendee  is 
Liable  for  Price. 

Certain  jewelry  which  had  been  sold  under  conditional 
sale  agreement  was  stolen  from  the  vendee,  and  thereafter 
vendor  made  demand  upon  vendee  for  return  of  such  property. 
This  demand,  of  course,  was  not  complied  with.  An  action  in 
conversion  was  later  brought  to  recover  the  value  of  such  prop- 
erty. 

Held :  As  the  property  had  been  taken  from  the  vendee 
through  no  fault  of  his,  there  was  no  conversion  on  his  part 
when  he  failed  to  deliver  it  upon  demand,  and  the  action  could 
not  be  maintained.  The  general  rule  was  stated  that  a  de- 
mand and  refusal  to  deliver  personal  property  did  not  estab- 
lish a  conversion,  where  at  the  time  of  the  demand  the  prop- 
erty in  question  is  not  in  existence,  and  that  the  accidental  loss 
or  destruction  of  an  article  by  one  lawfully  in  its  possession  is 
not  a  conversion.  It  was  stated  that  an  action  on  the  contract 
by  vendor  against  vendee,  under  such  circumstances,  could 
be  maintained  to  collect  the  balance  unpaid.  Sternberg  v. 
Schein,  63  A.  D.  417,  71  N.  Y.  S.  511. 


S.     REPOSSESSION  AND  REFUND. 

When  default  is  made  in  payment  under  a  conditional  sale 
contract  and  the  property  is  taken  possession  of,  it  must  be 
held  thirty  days  by  the  vendor,  or  his  successor  in  interest, 
subject  to  redemption  by  the  vendee  or  his  successor  in  inter- 
est, by  complying  with  the  terms  of  said  contract  and  paying 
the  expense  of  storage.  After  the  expiration  of  this  period  the 
property  must  be  sold  at  public  auction  by  the  vendor  or  his 


NEW  YORK.  337 

successor  in  interest,  and  at  least  fifteen  days  written  notice  of 
said  sale  must  be  given  the  vendee  or  his  successor  in  interest 
in  person,  if  he  is  within  the  county  where  the  sale  is  to  be  held, 
and  if  not  within  such  county,  or  he  cannot  be  found  therein, 
such  notice  must  be  mailed  to  him  at  his  last  known  place  of 
residence.    Such  notice  shall  state : 

1.  The  terms  of  the  contract. 

2.  The  amount  unpaid  thereon. 

3.  The  amount  of  expenses  of  storage. 

4.  The  time  and  place  of  sale  unless  such  amounts  are 
sooner  paid. 

This  notice  may  be  given  while  the  property  is  being  held 
so  that  said  sale  can  take  place  on  the  31st  day  after  reposses- 
sion. It  must,  however,  be  sold  at  some  time  during  the  second 
thirty  days  after  repossession. 

If  the  property  brings  more  at  this  public  sale  than  the 
amount  due  on  the  contract  together  with  the  expenses  of  stor- 
age and  sale,  the  balance  must  be  held  by  the  vendor  or  his  suc- 
cessor in  interest,  subject  to  the  demand  of  the  vendee  or  his 
successor  in  interest,  and  notice  of  the  amount  so  held  must  be 
served  on  the  vendee  or  his  successor  either  personally  or  by 
mail.  If  not  claimed,  the  amount  due  vendee  or  his  successor 
in  interest  must  be  held  thirty  days  from  the  date  of  sale  and 
then  be  deposited  with  the  treasurer  or  chamberlin  of  the  city 
or  village,  or  the  supervisor  of  the  town  where  the  sale  was 
held,  together  with  a  copy  of  the  notice  served  on  the  vendee 
or  his  successor  in  interest,  also  a  verified  statement  of  the 
amount  unpaid  upon  the  contract,  expenses  of  storage  and  of 
sale,  and  the  amount  of  such  balance. 

Where  property  is  returned  or  taken  possession  of  by  mu- 
tual consent  on  failure  of  the  vendee  to  perform,  the  necessity 
for  resale  by  notice  and  public  auction,  may  be  waived  by  an 
agreement  in  writing  through  which  the  vendee  is  relieved  of 
further  payments,  and  the  vendor  is  relieved  from  such  resale. 


338  CONDITIONAL  SALES. 

This  agreement  cannot  appear  in  the  original  contract  and  can 
only  be  entered  into  after  vendee  is  in  default  and  there  must 
be  a  sufficient  consideration  running  to  the  vendee.  A  promise 
to  relieve  him  from  further  payments  is  such  a  consideration, 
but  an  additional  $1.00  or  more,  actually  paid  in  cash  would 
strengthen  it.  Consolidated  Laws  Vol.  4,  Personal  Property 
Law,  §§  65-67. 

Waiver  in  Original  Contract  not  Valid. 

Furniture  was  sold  under  a  conditional  contract  of  sale 
and  the  payments  not  having  been  made  as  agreed,  this  prop- 
erty was  replevined  by  the  vendor.  It  was  held  by  him  for  more 
than  sixty  days  and  not  sold  at  public  auction  after  which  the 
vendee  sued  to  recover  the  amount  paid  on  the  contract. 

Held :  That  he  could  recover  less  the  expense  of  the  re- 
plevin action,  as  such  action  only  determined  who  should  have 
possession  of  the  property,  and  in  no  manner  superseded  the 
provisions  of  the  statute  as  to  notice  of  sale,  even  if  such  prop- 
erty had  come  into  the  possession  of  the  vendor  under  a  con- 
tract containing  a  provision  by  which  the  vendee  expressly 
waived  the  making  of  a  sale  by  the  vendor  as  provided  by  the 
statutes.    Roach  v.  Curtis,  191  N.  Y.  387,  84  N.  E.  283. 

A  soda  fountain  was  sold  in  New  York  under  a  conditional 
contract  of  sale  retaining  all  title  in  the  vendor  until  paid  for. 
The  contract  further  provided  in  case  of  default  and  taking  pos- 
session thereof  by  the  vendor,  that  all  sums  paid  under  the 
contract  should  be  retained  by  the  vendor  as  and  for  the  use  of 
such  property,  to  the  date  of  such  removal,  and  that  no  compli- 
ance with  the  statute  (Personal  Property  Law.  §§  65-67),  pro- 
viding for  sale  at  public  auction  by  the  vendor,  after  holding 
the  property  thirty  days,  and  giving  the  required  notice,  should 
be  necessary. 

After  paying  nearly  $1,000.00  on  the  contract,  vendee  was 
adjudicated  bankrupt,  and  a  trustee  appointed  of  its  property. 
The  soda  fountain  was  scheduled  in  the    bankruptcy    with    a 


NEW  YORK.  339 

statement  of  its  having  been  purchased  under  a  conditional 
contract  of  sale.  The  trustee  in  bankruptcy  did  not  exercise 
control  over  the  fountain  and  with  his  consent  the  vendor 
leased  it  for  several  months  to  the  party  who  was  occupying 
the  store  and  continuing  the  business  of  the  bankrupt.  Later, 
the  vendor  actually  took  physical  possession  of  the  fountain, 
held  it  thirty  days  and  then  sold  it  at  public  auction  (no  state- 
ment in  the  opinion  as  to  the  giving  of  proper  notice,  but  the 
inference  would  be  that  such  notice  was  given),  for  an  amount 
less  than  the  balance  unpaid  on  the  contract.  Action  was  later 
brought  by  the  trustee  in  bankruptcy  against  the  original  ven- 
dor of  the  soda  fountain  to  recover  the  amount  paid  by  the  ven- 
dee under  the  contract. 

Held :  The  legal  retaking  of  the  property  occurred  when 
the  lease  to  the  third  party  was  made,  and  not  when  actual 
physical  possession  was  assumed,  for  which  reason  the  property 
had  not  been  sold  at  public  auction  as  provided  by  the  New 
York  statute,  that  the  waiver  clause  in  the  contract  was  against 
public  policy  and  void.  The  trustee  was  permitted  to  recover 
the  full  amount  of  payments  made  with  interest.  Crowe  v. 
Liquid  Carbonic  Co.,  208  N.  Y.  396,  102  N.  E.  573. 

Ice-cream  machines  were  sold  under  conditional  contract 
of  sale  and  after  part  payment  the  vendee  became  bankrupt.  The 
machines  were  offered  for  sale  subject  to  the  contract  but  no 
bids  were  received,  and  later  the  vendor  took  possession.  The 
machines  were  then  held  more  than  sixty  days  and  not  sold  at 
public  auction  as  provided  by  New  York  law,  after  which  the 
trustee  in  bankruptcy  sued  the  vendor  to  recover  for  the  estate 
all  money  which  had  been  paid  by  the  vendee.  There  had  been 
no  judicial  determination  of  the  bankruptcy  court  awarding 
possession  to  vendor ;  the  machines  had  simply  been  repos- 
sessed without  dissent  on  the  part  of  the  trustee.  Vendor,  de- 
fendant, claimed  as  a  defense  the  waiver  of  the  necessity  of 
sale  by  a  clause  in  the  contract  of  conditional  sale.  There  was 
no  express  waiver  and  the  court  gave  judgment  for  the  trustee, 
stating  that  even  though  a  person  may  waive  a  constitutional 


340  CONDITIONAL  SALES. 

right,  it  is  doubtful  whether  in  an  executory  contract,  such  as  a 
conditional  sale,  the  statutory  requirement  of  resale  after  de- 
fault and  repossession  can  be  legally  waived,  as  in  these  con- 
tracts a  matter  of  public  policy  is  involved.  Hurley  v.  Allman 
Gas  Engine  &  Machine  Co.,  144  A.  D.  300,  129  N.  Y.  S.  14. 

Resale,  How  Conducted. 

It  is  a  very  simple  matter  to  comply  with  the  New  York 
statute  as  to  resale  by  the  vendor  after  taking  possession  un- 
der a  conditional  sale  contract. 

1.  After  taking  possession  the  property  must  be  held 
thirty  days. 

2.  When  this  thirty  days  shall  have  expired  the  property 
must  be  sold  at  public  auction  within  the  succeeding  thirty 
days. 

3.  Fifteen  days'  notice  must  be  given  to  the  vendee  in 
writing. 

4.  This  notice  must  be  served  on  vendee  in  person  if  he 
is  within  the  county  where  the  sale  is  to  be  held  and  can  be 
found  there  with  reasonable  diligence ;  in  case  he  is  not  within 
such  county  and  cannot  be  found  therein  by  reasonable  search 
then  the  notice  may  be  mailed  to  his  last  known  postoffice  ad- 
dress. 

5.  This  notice  must  be  given  while  the  property  is  being 
held,  but  no  sale  can  take  place  until  after  the  end  of  the  first 
thirty  days  from  the  time  when  the  property  was  repossessed. 
It  must,  however,  be  sold  within  sixty  days  from  the  date  when 
repossessed.  At  the  sale  vendor  may  bid  the  amount  of  his 
claim  with  storage  and  expenses  of  sale  added.  If  no  one  bids 
more  the  property  is  struck  off  to  him  and  his  title  is  complete. 
In  case  a  higher  bid  is  received,  then  the  balance  after  paying 
the  above  named  items,  must  be  turned  over  to  the  vendee. 

6.  It  is  usually  the  rule  that  no  one  appears  to  bid  higher 
than  the  vendor's  claim  and  by  following  out  the  above  instruc- 


NEW  YORK.  341 

tions  absolute  title  to  the  property  can  be  secured  to  the  vendor 
and  there  will  be  no  liability  on  his  part  to  repay  vendee  any 
portion  of  the  money  which  had  been  received  on  the  contract. 


NOTICE  OF  SALE. 

To 

Buffalo,  N.  Y. 

Take  notice  that  heretofore  and  on  the  8th  day  of  January, 
1913,  you  entered  into  a  contract  in  writing  for  the  purchase  of 
an  iron  safe  under  a  conditional  contract  of  sale  with  the  Gary 
Safe  Co.,  of  Buffalo,  N.  Y.,  a  corporation,  having  its  principal 
place  of  business  in  Buffalo,  N.  Y.  A  copy  of  such  contract 
is  attached  hereto  and  made  a  part  hereof  marked  "Exhibit 
A."  There  remains  under  the  contract  in  question  past  due 
and  unpaid  the  sum  of  seventy-three  and  25/100  ($73.25)  dol- 
lars and  the  said  Cary  Safe  Co.,  have  incurred  expenses  of  stor- 
ag:e  six  and  75/100  ($6.75)  dollars.  The  said  safe  has  been 
taken  possession  of  under  the  conditional  sale  contract  upon 
your  default  and  will  be  sold  at  public  auction  as  provided  by 
law  on  December  11,  1917,  at  nine  o'clock  in  the  forenoon  at 
the  Cary  Safe  Co.'s  factory,  No.  250  Chicago  St.,  Buffalo,  N.  Y., 
unless  such  sums  are  sooner  paid  to  the  said  Cary  Safe  Co. 

Dated,  November  6,  1917. 

CARY  SAFE  COMPANY. 
By 


Can  Waive  Resale  by  Separate  Agreement. 

Machinery  was  delivered  in  New  York  under  conditional 
sale  contract  and  a  substantial  payment  made.  After  default 
correspondence  took  place  between  vendor  and  vendee,  which 
resulted  in  an  agreement  by  which  vendor  took  the  property 
back,  and  cancelled  and  delivered  to  vendee  the  notes  which 
had  been  given  under  said  contract  representing  the  balance  un- 
paid.    It  was  understood  that  all  obligation  for  further  pay- 


342  CONDITIONAL  SALES. 

ment  was  ended,  and  there  was  no  collusion  or  fraud  shown 
to  the  detriment  of  other  creditors  of  the  vendee.  The  machin- 
ery was  not  held  for  thirty  days  by  vendor  and  then  .sold  at 
auction  as  provided  by  §  65,  Personal  Property  Law  of  New 
York.  A  receiver  was  later  on  appointed  for  vendee's  property, 
and  he  brought  action  against  vendor  to  recover  all  payments 
made  upon  said  contract. 

Held :  No  recovery  could  be  had  as  the  express  agreement 
above  outlined  made  between  vendor  and  vendee,  after  default 
upon  the  contract,  was  valid  and  prevented  an  action  for  the 
penalty.  Seeley  v.  Prentiss  Tool  &  Supply  Co.,  158  A.  D.  853, 
Affirmed,  216  N.  Y.  687. 

A  trustee  in  bankruptcy  sued  a  conditional  sale  vendor  to 
recover  payments  made  by  a  conditional  sale  vendee.  It  was 
attempted  to  be  shown  that  such  vendee  had  consented  orally 
to  the  retaking  of  the  property  in  question,  and  thus  had 
waived  the  necessity  for  holding  the  property  thirty  days,  giv- 
ing fifteen  days'  notice  and  making  a  sale  at  public  auction.  The 
evidence  to  prove  such  facts  was  excluded,  and  upon  appeal 
held,  such  evidence  was  not  material  as  such  an  agreement  even 
if  made  would  not  have  constituted  a  waiver  of  the  statute.  It 
was  stated  that  where  default  has  been  made  under  conditional 
sale  contract,  and  vendee  and  vendor  enter  into  a  new  contract 
permitting  vendor  to  take  possession,  and  agreeing  that  no  re- 
sale shall  be  necessary,  under  §  65  of  the  New  York  Personal 
Property  Law  ;  then  if  there  shall  have  been  a  valid  legal  con- 
sideration passing  to  the  vendee  for  said  promise,  the  waiver 
would  be  enforceable,  and  no  resale  under  the  statute  would 
be  necessary.  Adler  etc.  v.  Weis  &  Fisher  Co.,  218  N.  Y.  295, 
112  N.  E.  1049. 

Where  a  vendee  has  voluntarily  surrendered  the  property 
he  held  under  conditional  sale  contract,  upon  the  ground  that 
it  was  not  worth  the  amount  then  unpaid,  he  cannot  thereafter 
recover  the  payments  he  made,  by  reason  of  the  fact  that  the 
vendor  failed  to  sell  the  property  as  required  by  statute.    This 


NEW  YORK. 


343 


is  true  if  the  sums  paid  amounted  to  no  more  than  the  fair 
rental  value  of  the  property,  while  used  by  the  vendee.  So 
held,  in  an  action  to  recover  all  the  money  which  had  been  paid 
under  a  contract  of  lease  with  option  to  purchase,  where  a  con- 
siderable number  of  the  installments  had  been  paid,  after  which 
vendee  defaulted  and  consented  to  the  vendor's  taking  the 
property.  It  was  not  sold  by  vendor  after  being  held  30  days 
and  the  proper  notice  given.  Fairbanks  v.  Nichols  &  Others, 
135  A.  D.  298,  119  N.  Y.  S.  752. 

Where  a  conditional  sale  vendee  corporation  had  become 
bankrupt,  the  president  of  such  corporation  consented  orally 
to  the  property  being  repossessed  by  the  vendor,  and  sold  by  it 
at  private  sale  to  another  corporation.  The  trustee  of  the 
bankrupt  brought  action  to  recover  all  the  money  paid  in  by 
the  vendee,  or  in  case  that  relief  should  be  denied  then  for  the 
balance  realized  by  the  original  vendor  upon  its  private  sale, 
over  and  above  the  debt  owing  to  it  on  the  contract. 

Held :  There  had  been  a  waiver  of  resale  at  public  auc- 
tion, and  the  full  amount  of  payments  could  not  be  recovered, 
but  the  surplus  could  be  recovered.  There  was  no  definite  evi- 
dence before  the  court  to  detemiine  this  amount  and  the  case 
was  sent  back  for  a  new  trial  to  ascertain  it.  Leonard  v.  Mon- 
tague, 155  A.  D.  506,  140  N.  Y.  S.  562;  Boschen  v.  Multicolor 
Sales  Co.  Inc.,  163  N.  Y.  S.  202.  See  also,  Nyboe  v.  Doll  & 
Sons,  167  A.  D.  225;  152  N.  Y.  S.  650;  Cee  Bee  Cee  etc.  Co.  v. 
Borenstcin.  164  N.  Y.  S.  703. 

When  Demand  not  Necessary  before  Repossession. 

Gibbons  v.  Luke  (discussed  in  New  York,  J.),  t;/  llun.  576. 

When  Demand  Necessary  before  Repossession. 

The  vendee  of  a  piano  under  conditional  sale  contract  in 
New  York  was  in  default  and  when  about  to  lose  the  instru- 
ment l)y  repossession,  went  to  the  vendor's  office  and  there  an 


344  CONDITIONAL  SALES. 

arrangement  was  made  whereby  vendee  paid  $10.00  on  the 
amount  remaining  and  secured  extension.  Later  on  vendor  not 
having  received  further  payment  as  agreed  took  possession  of 
the  piano,  and  on  the  same  day  vendee  tendered  the  balance 
unpaid  on  the  contract.  Later  vendee  brought  action  against 
vendor  to  recover  damages  for  conversion  of  such  piano,  claim- 
ing that  the  extension  of  time  granted  when  the  $10.00  was 
paid  had  not  expired,  and  even  if  it  had,  there  had  been  no  de- 
mand for  payment  in  full  before  the  instrument  was  repos- 
sessed. 

Held :  Under  such  circumstances,  that  vendor  had  waived 
the  forfeiture  which  occurred  when  default  under  the  original 
contract  was  made,  and  that  he  must  make  proper  legal  de- 
mand for  payment  in  full  before  taking  possession.  On  this 
trial  it  was  established  that  the  jury  had  taken  as  the  measure 
of  damages  to  the  vendee,  the  value  of  an  old  piano  which  had 
been  traded  in,  together  with  the  full  amount  of  payments 
which  had  been  made  by  the  vendee.  This  rule  of  damages 
was  stated  to  be  wrong,  and  such  vendee,  if  entitled  to  recover 
at  all,  should  receive  the  value  of  the  new  piano  on  the  day  and 
date  when  it  was  repossessed  with  interest  to  the  day  when  the 
verdict  was  rendered.  (Payment,  Extension  and  Trade,  see 
New  York,  J'.).  Cunningham  v.  Hedge,  12  A.  D.  212,  42  N.  Y. 
S.  549- 

When  Vendor  Liable  for  Personal  Injuries  Inflicted  in  Re- 
taking. 

An  action  for  damages  was  brought  in  New  York  by  a  ven- 
dee under  conditional  sale  contract,  where  an  agent  of  the  ven- 
dor injured  her  seriously  when  taking  possession  of  the  ma- 
chine. The  action  in  question  was  against  the  original  vendor, 
and  the  defense  was  to  the  effect  that  the  agent  in  question,  was 
merely  a  collector  of  the  installments  falling  due  under  the  con- 
tract, that  he  had  no  authority  whatever  to  take  possession  of 
the  machine,  and  therefore  the  vendor  could  not  be  held  liable 
in  as  much  as  the  agent  was  acting  outside  of  his  authority.   The 


NEW  YORK.  345 

verdict  had  been  for  plaintiff  at  the  trial,  and  the  judgment  so 
entered,  and  the  order  denying  a  new  trial,  were  reversed  upon 
appeal  for  the  reason  stated  above.  It  seems  to  have  been 
clearly  intimated  from  the  reasoning  used  in  this  opinion,  that 
if  this  agent  of  the  vendor  had  been  clothed  with  authority  to 
take  this  machine,  and  if  upon  resistance  under  such  circum- 
stances, he  had  committed  the  assault  in  question,  then  the 
vendor  company  would  have  been  liable  for  damages.  Feneran 
v.  Singer  Mfg.  Co.,  20  A.  D.  574,  47  N.  Y.  S.  284. 


Vendee  can  Recover  full  Amount  Paid. 

Where  goods  held  under  conditional  contract  of  sale  are 
retaken  by  the  vendor,  and  not  sold  at  public  auction  within 
sixty  days  as  provided  by  statute,  even  though  the  contract  is 
in  the  form  of  a  lease  and  the  payments  were  called  rent,  the 
vendee  can  recover  the  amount  paid  in  and  the  vendor  is  not 
entitled  to  even  a  reasonable  compensation  for  .use  of  the 
property  while  in  vendee's  possession.  (Form  of  Contract,  see 
New  York,  B.).  Hoffman  v.  White  Sewing  Machine  Co.,  123 
A.  D.  166,  108  N.  Y.  S.  253. 


Vendee  Cannot  Recover  Full  Amount  Paid. 

Action  to  recover  full  amount  paid  in  upon  a  conditional 
sales  contract  covering  several  articles  of  personal  property. 
Vendee  recovered  for  the  amount  claimed,  but  such  judgment 
was  reversed  upon  the  theory  that  it  was  not  shown  at  the  trial 
that  all  the  property  included  in  such  contract  had  been  repos- 
sessed, and  further  as  vendee  by  express  agreement  was  liable 
for  all  damage  to  such  property,  aside  from  ordinary  wear  and 
tear,  proof  should  have  been  permitted  as  to  such  damage  if 
any  existed.  Rindone  v.  Hamlin's,  Inc.,  161  N.  Y.  S.  858; 
Siegel  V.  Rieser,  37  Misc.  684,  162  N.  Y.  S.  391. 


346  CONDITIONAL  SALES. 

Vendee  May  Sell  his  Interest. 

Property  was  held  under  conditional  contract  of  sale  and 
the  major  part  of  the  debt  had  been  paid  On  the  day  when 
the  balance  became  due  the  vendee  made  a  transfer  of  the  prop- 
erty to  his  wife.  The  vendor  seized  the  property,  held  it  thirty 
days  and  advertised  it  for  sale.  During-  the  thirty  days  ven- 
dee's wife  tendered  to  him  the  balance  claimed  to  be  due  and 
something  more  for  his  expenses  and  this  was  refused.  A  con- 
version action  was  brought  by  vendee's  wife  against  vendor. 

Held :  The  transfer  to  the  wife  of  vendee  vested  title  in 
her  subject  to  vendor's  rights,  and  as  proper  tender  had  been 
made  she  could  maintain  the  suit.  (Legal  Status,  see  New 
York,  A.).  Powers  v.  Burdick  et  al,  126  A.  D.  179,  no  N.  Y. 
S.  883. 

Resale  after  Repossession  must  Follow  Statute. 

A  team  of  horses  were  sold  under  conditional  sale  contract, 
and  later  on  the  said  horses  were  delivered  to  a  third  person 
who  assumed  and  agreed  to  pay  the  balance  then  remaining. 
This  balance  was  not  paid  and  the  original  vendor  caused  the 
horses  to  be  seized,  and  they  were  sold  by  a  deputy  sheriff,  as 
vendor's  agent,  after  being  held  eight  days.  There  was  no 
compliance,  in  any  way,  with  the  conditional  sale  law  requir- 
ing that  property  so  repossessed  shall  be  held  thirty  days  and 
that  fifteen  days  notice  of  sale  shall  be  given.  Upon  the  sale 
in  question  a  certain  amount  was  received  which  did  not  equal 
the  balance  unpaid  on  the  contract.  This  sum  was  added  to  the 
sum  which  had  been  paid  in  on  the  contract.  A  certain  amount 
for  expenses  of  the  sale  by  the  deputy  sheriff  was  added  to  the 
balance  on  the  contract,  and  the  difference  between  these  two 
sums  was  claimd  to  be  the  amount  still  due  and  owing  to  the 
vendor.  For  this  sum  he  brought  suit  against  the  person  who 
had  assumed  and  agreed  to  pay  the  balance  on  such  contract. 

The  defense  was  made  that  as  the  property  had  been  taken 
back,  the  contract  had  been  rescinded  and  no  recovery  could  be 


NEW  YORK. 


347 


had.  This  defense  was  held  vaHd  on  the  ground  that  under 
conditional  sale  agreements  in  New  York  the  vendor  cannot 
have  both  his  property  and  still  collect  the  purchase  price.  This 
decision  intimated  that  if  this  property  had  been  held  thirty 
days  and  the  proper  fifteen  days  notice  given,  and  a  sale  had 
taken  place,  which  did  not  return  sufficient  money  to  pay  the 
balance  on  the  contract  with  expenses  of  sale,  this  would  have 
been  deemed  a  foreclosure  and  the  original  vendor  could  have 
recovered  from  the  vendee,  such  balance  as  remained  together 
with  reasonable  expenses  of  such  sale.  (Election  of  Remedies, 
see  New  York,  P.).  Nelson  v.  Gibson,  143  A.  D.  894,  129  N. 
Y.  S.  702. 

Action  not  Necessary  to  Repossess. 

Where  theatre  chairs  had  been  sold  and  delivered  in  New 
York  under  conditional  sale  contract,  there  was  default  in  pay- 
ment and  vendor  brought  replevin  ;  but  the  court  issuing  such 
writ  did  not. have  jurisdiction  of  the  action,  and  the  chairs 
which  had  been  taken  by  virtue  thereof  were  returned  to  the 
vendee.  Such  vendee  thereafter  never  having  paid  for  the  said 
chairs,  and  being  still  in  default,  brought  action  for  damages 
and  was  awarded  a  substantial  sum  by  the  trial  court.  Upon 
appeal,  held,  the  vendor  had  the  right  of  repossession  and  even 
though  the  replevin  writ  was  void,  still  the  marshal  who  exe- 
cuted it,  could  lawfully  take  possession  of  the  chairs  as  the 
vendor's  agent  under  the  contract,  without  any  process  of  law ; 
and  the  judgment  was  reversed.  Mendelson  et  a!  v.  Irving  et 
al,  155  A.  D.  114,  139  N.  Y.  S.  1065. 

Foreclosure  of  Common  Law  Lien  is  not  Repossession. 

Where  personal  property  delivered  under  conditional  sale 
contract  had  been  foreclosed  upon  and  sold  in  pursuance  to  the 
New  York  City  Municipal  Court  Act,  (§  139,  Laws  of  1902, 
Chap.  580,  as  amended  by  Laws  of  1910,  Chap.  542),  the  vendee 
sued  to  recover  all  payments  made  upon  the  contract. 


348  CONDITIONAL  SALES. 

Held :  No  recovery  could  be  had  as  such  foreclosure  was 
not  a  retaking  under  §§  65-66-67,  Personal  Property  Law  of 
New  York,  (Election  of  Remedies,  see  New  York,  P.).  Crump 
V.  Wissner,  163  A.  D.  47,  148  N.  Y.  S.  401. 

Replevin  gives  Possession  on  Day  of  Judgment  Entered. 

Personal  property  was  replevined  where  default  occurred 
under  a  conditional  sale  contract.  While  such  action  was  pend- 
ing and  before  final  judgment  vendor  advertised  the  property 
for  sale  and  sold  it  as  provided  by  the  Personal  Property  Law 
of  New  York.  After  sixty  days  elapsed  from  the  entry  of  judg- 
ment in  the  replevin  action,  there  having  been  no  sale  in  the 
interim,  vendee  sued  to  collect  all  payments  made. 

Held :  Same  could  be  recovered,  as  the  sale  should  have 
been  within  60  days  after  replevin  judgment  entered.  Spitaleri 
V.  Brown,  163  A.  D.  644,  148  N.  Y.  $.  1005. 

Property  which  had  been  sold  on  conditional  sale  contract 
was  taken  by  an  officer  in  replevin  at  the  suit  of  the  vendor  on 
a  certain  date.  Trial  was  later  had  and  judgment  rendered, 
awarding  the  property  to  the  plaintiff,  the  conditional  vendor, 
the  judgment  was  entered  and  the  property  was  held  by  the 
vendor  for  thirty  days  thereafter  being  advertised  for  sale  and 
sold  within  the  next  thirty  days;  the  sale  having  taken  place 
within  sixty  days  from  the  entry  of  the  judgment  in  the  re- 
plevin suit.  Action  was  brought  by  the  original  vendee  to  re- 
cover the  amount  paid  under  the  contract,  on  the  theory  that 
the  sale  should  have  taken  place  within  sixty  days  after  the 
officer  seized  the  property. 

Held :  The  sale  was  valid  as  made,  for  the  original  vendor 
had  no  legal  possession  until  the  judgment  in  the  replevin  suit 
was  entered.    Sigal  v.  Hatch  Co.,  61  Misc.  332,  113  N.  Y.  S.  818. 

Sale  on  Execution  by  Vendor  is  not  Repossession. 

West  Publishing  Co.  v.  Gluck,  92  Misc.  198,  155  N.  Y.  S. 
514. 


NEW  YORK.  349 

When  Right  of  Action  will  Lie  for  Refund. 
Date  of  Repossession,  What  Is. 

Dryer  machinery  had  been  delivered  in  New  York  under 
conditional  sale  contract,  and  vendee  after  making  the  cash 
payment  assigned  his  interest  therein  to  a  corporation.  Such 
corporation  made  further  payments,  then  defaulted  and  became 
bankrupt.  In  order  to  adjust  complicated  matters  involving 
real  estate  mortgages  upon  property  owned  by  the  bankrupt, 
and  in  which  this  machinery  was  placed,  the  trustee  conveyed 
all  his  right,  title  and  interest  in  such  machinery  to  the  hold- 
ers of  such  mortgages.  Later  the  original  vendors  took  the 
machinery  from  said  buildings  practically  by  consent  of  such 
mortgagees  and  shipped  it  to  Buffalo,  New  York.  There  a  sale 
was  had,  but  not  within  sixty  days  after  vendors  started  to  dis- 
mantle the  plant,  and  thereafter  the  persons  to  whom  the  trus- 
tee in  bankruptcy  had  transferred  his  interests,  the  mortgagees 
of  the  real  estate,  sued  the  original  vendors  to  recover  all  pay- 
ments made.  One  of  the  points  at  issue  was  as  to  a  proper 
sale  within  the  time  limit.  Another  was  as  to  whether  or  not 
there  had  been  such  a  transfer  by  the  trustee  in  bankruptcy  as 
to  carry  the  said  right  of  action.  A  third  was,  that  even  as- 
suming the  transfer  to  have  carried  the  right  of  action,  did  the 
acts  of  such  transferees  amount  to  a  consent  that  vendor  might 
repossess,  for  if  they  did  no  action  could  be  maintained.  These 
questions  had  been  taken  from  the  jury  at  the  trial  and  this 
was  held  error.  Breakstone  v.  Buffalo  Fdry.  &  Machine  Co., 
167  A.  D.  62,  152  N.  Y.  S.  394;  Lowy  v.  Hardman,  Peck  &  Co., 
176  A.  D.  121,  162  N.  Y.  S.  461. 

Can  Collect  Purchase  Price  After  Repossession. 

Where  bicycles  had  been  sold  under  conditional  sale  con- 
tract the  vendee  defaulted,  and  vendor  took  the  property  after 
the  full  amount  became  due,  but  held  it  and  did  not  sell  same 
either  publicly  or  privately  Suit  was  then  brought  by  vendor 
against  vendee  to  collect  the  balance  unpaid,  the  plaintiff  being 


350  CONDITIONAL  SALES. 

ready  and  willing  to  return  the  bicycles  upon  payment.  (Elec- 
tion of  Remedies,  see  New  York,  P.). 

Held :  It  could  recover.  Equitable  General  Providing  Co. 
V.  Potter,  22  Misc.  124,  48  N.  Y.  S.  647.  Same  effect.  Equitable 
General  Providing  Co.  v.  Eisentrager,  34  Misc.  179,  68  N.  Y.  S. 
866;  National  Cash  Register  Co  v.  Coleman,  (discussed  in  New 
York,  A.),  85  Hun.  125. 

When  Vendee  Gives  Chattel  Mortgage  after  Conditional  Sale 
Contract,  no  Refund  is  Payable  after  Repossession. 

Gaul  v.  Goldburg  etc.  Co.,  (discussed  in  New  York,  A.). 
147  N.  Y.  S.  516. 

Vendee  May  Transfer  Right  to  Refund. 

A  conditional  sale  vendee  in  New  York  who  had  paid  a 
portion  of  the  purchase  price  for  a  cash  register,  transferred 
his  interest  in  the  contract  to  a  third  person  and  presumably  de- 
livered the  register  to  such  person.  Later  the  vendor  of  such 
property  replevined  it  from  the  third  party,  but  failed  to  adver- 
tise and  sell  same  as  provided  by  Section  65.  Personal  Property 
Law  of  New  York.  The  original  vendee  brought  action  to  re- 
cover the  amount  he  had  paid  upon  the  contract. 

Held :  He  had  transferred  such  right  of  action  to  the  third 
party  and  could  not  recover.  (Legal  Status,  see  New  York, 
A.).    Steiner  v.  National  Cash  Register  Co.,  155  N.  Y.  S.  447. 

Taking  Property  out  of  State  Does  not  Relieve  from  Refund. 

A  conditional  sale  contract  for  a  machine  was  made  in 
New  York,  the  machine  was  in  Pennsylvania,  and  the  vendor 
had  seven  days  after  receipt  of  such  contract  at  Philadelphia, 
Pa.,  in  which  to  cancel  it.  This  option  was  not  exercised,  and 
the  machine  was  shipped  from  Pennsylvania  to  New  York 
and  used  there  for  a  time.  Later  vendee  defaulted  after  pay- 
ing a  considerable  sum  in  cash  and  advertisements  furnished. 
The  machine  was  repossessed  by  vendor  and  taken  back  to 


NEW  YORK.  351 

Philadelphia,  but  was  never  sold  under  Section  65  of  New 
York  Personal  Property  Law,  which  provides  that  it  should 
be  held  thirty  days,  etc.,  and  then  be  sold  at  public  auction. 
Vendee  sued  vendor  for  the  full  amount  paid  in.  Vendor  set 
up  as  one  defense,  that  the  transaction  constituted  interstate 
commerce  and  no  compliance  with  New  York  law,  was  re- 
quired. 

Held :  The  suit  in  question  only  incidentally  affected  in- 
terstate commerce  and  recovery  was  allowed.  Lanston  Mono- 
type Machine  Co.  v.  Curtis,  224  Fed.  403. 

T.     COMITY. 
No  cases  found. 

U.     RAILROAD  EQUIPMENT. 

Whenever  any  railroad  equipment  and  rolling  stock  is 
sold,  leased  or  loaned  under  a  contract  which  provides  that 
the  title  to  such  property,  notwithsanding  the  use  and  pos- 
session thereof  by  the  vendee,  lessee  or  bailee,  shall  remain 
in  the  vendor,  lessor  or  bailor,  until  the  terms  of  the  contract 
as  to  payment  of  installments,  amounts  or  rentals  payable, 
or  the  performance  of  other  obligations  thereunder,  are  fully 
complied  with  and  that  title  to  such  property  shall  pass  to  the 
vendee,  lessee  or  bailee  on  full  payment  therefor,  such  con- 
tract shall  be  in\alid  as  to  any  subsequent  judgment  creditor 
of  or  purchaser  from  such  vendee,  lessee  or  bailee  for  a  valu- 
able consideration,  without  notice,  unless; 

1.  Such  contract  is  in  writing  duly  acknowledged  and 
recorded  in  the  book  in  which  real  estate  mortgages  are  re- 
corded, in  the  office  of  the  county  clerk,  or  register  of  the 
county  in  which  is  located  the  principal  office  or  place  of  busi- 
ness of  such  vendee,  lessee  or  bailee  and  unless; 

2.  Each  locomotive  or  car  so  sold,  leased  or  loaned  has 
the  name  of  the  vendor,  lessor  or  bailor,  or  of  the  assignee  of 


352  CONDITIONAL  SALES. 

such  vendor,  lessor  or  bailor,  plainly  marked  on  both  sides 
thereof,  followed  by  the  word  "owner,"  "lessor,"  or  "bailor"  or 
"assignee"  as  the  case  may  be.  Consolidated  Laws,  Vol.  4.  Per- 
sonal Property  Law,  §  61. 

What  is  not  Railroad  Equipment. 

Locomotives  were  delivered  in  New  York  under  condi- 
tional contract  of  sale  to  a  contracting  firm  and  were  used 
by  them  on  the  work  they  had  under  construction.  The  con- 
tract was  not  recorded  or  filed  and  when  vendee  became  bank- 
rupt the  question  arose  on  petition  for  repossession  of  such 
property,  as  to  whether  or  not  it  was  railroad  equipment,  for 
if  so,  it  was  conceded  that  the  contract  must  have  been  re- 
corded as  provided  by  the  New  York  law  or  the  lien  was  lost 
as  against  the  trustee  in  bankruptcy. 

Held :  The  locomotives  were  ordinary  personal  prop- 
erty and  as  to  a  trustee  in  bankruptcy  no  filing  was  required. 
In  order  to  constitute  a  sale  of  railroad  equipment  the  sale 
must  be  to  a  common  carrier  of  passengers  or  freight  or  both 
for  hire.  In  re:  Ferguson  Contracting  Co.,  183  Fed.  880;  Ex 
parte  Vulcon  Iron  Works,  183  Fed. 


V.     ESTOPPLE. 

Estopple,  What  Is. 

A  pair  of  horses  were  sold  under  conditional  sale  contract 
and  were  delivered,  but  before  anything  had  been  paid  upon 
the  price  one  of  them  died  without  fault  of  either  vendee  or 
vendor.  Thereafter  vendee  delivered  vendor  certain  goods 
to  apply  on  the  contract,  but  not  sufficient  to  pay  for  both 
horses.  Vendor  took  possession  of  the  living  horse  and 
vendee  sued  him  to  recover  the  full  amount  which  had  been 
paid  upon  the  contract.  Held  he  could  not  recover,  as  it  was 
not  shown  that  vendee  had  either  offered  to  perform  on  his 


NEW  YORK.  353 

part  in  full,  or  that  vendor  had  so  acted  with  reference  to  the 
live  horse  as  to  have  put  it  beyond  such  vendor's  power  to 
deliver  such  horse  upon  being  paid  in  full.  The  point  that 
vendee  might  have  been  relieved  of  payment  for  one  horse 
because  the  horse  had  died  while  title  remained  in  vendor  was 
eliminated  from  the  case  by  the  fact  that  vendee  had  affirmed 
the  contract  by  making  payments  upon  it  after  the  death  of  said 
horse.     Humeston  v.  Cherry,  23  Hun.  141. 


354  CONDITIONAL  SALES  (nEW  YORK), 


NORTH  CAROLINA. 


Legal  Status  of  Conditional  Sale  Contracts. 

Conditional  sale  contracts  are  provided  for  by  statute  law 
in  this  state.  Pell's  Revisal,  §  983.  Brem  &  One  v.  Lockhart, 
93  N,  C.  191 ;  Chemical  Co.  v.  Johnson  &  One,  98  N.  C.  123,  3 
S.  E.  723;  Kornegay  v.  Kornegay,  109  N.  C.  188,  13  S.  E.  770; 
Singer  Mfg.  Co.  v.  Gray,  121  N.  C.  168,  28  S.  E.  257;  Huyett 
et  al  V.  Gray,  124  N.  C.  322,  32  S.  E.  718;  Hinkle,  Craig  Co.  v. 
Greene,  125  N.  C.  489,  34  S.  E.  554;  Lance  v.  Butler,  135  N.  C. 
419,  47  S.  E.  488;  National  Cash  Register  Co.  v.  Hill,  136  N.  C. 
272,  48  S.  E.  637 ;  Gresham  Mfg.  Co.  v.  Carthage  Buggy  Co., 
152  N.  C.  845,  68  S.  E.  175  ;  Standard  Dry  Kiln  Co.  v.  Ellington, 
90  S.  E.  564;  Wood  etc.  v.  Eubank  etc.,  169  Fed.  929;  Wood 
Mowing  etc.  Co.  v.  Vanstory,  171  Fed.  375. 

How  Executed. 

They  should  be  in  writing  signed  by  the  vendee,  but  do 
not  need  to  be  signed  by  the  vendor,  the  acceptance  of  such  a 
contract  on  the  part  of  the  vendor  by  acting  upon  it  or  shipping 
the  goods  being  sufhcient  to  make  a  binding  contract  as  be- 
tween the  parties  thereto.  There  is,  however,  no  objection  to 
the  contract  being  formally  signed  and  accepted  by  the  vendor- 
Butts  v.  Screws,  95  N.  C.  215 ;  Puffer  Mfg.  Co.  v.  Baker  &  One, 
104  N.  C.  148,  10  S.  E.  254;  Wilcox  Bros.  v.  Cherry  et  al,  123 
N.  C.  79,  31  S.  E.  369. 

Acknowledgment  or  Proof. 

Such  a  contract  is  valid  as  between  the  parties  thereto 
without  acknowledgment  or  proof,  or  filing  or  recording ;  but 

355 


356  CONDITIONAL  SALES. 

in  order  to  make  it  valid  and  to  hold  title  as  against  creditors  or 
purchasers  for  a  valuable  consideration  from  vendee,  it  must 
be  registered.  To  entitle  the  contract  to  be  registered  it  is 
necessary,  either  that  it  be  acknowledged  by  the  vendee  in  per- 
son, or  that  it  be  proven  by  one  subscribing  witness.  Where  a 
married  woman  signs  and  acknowledges  such  a  contract,  ex- 
cept for  household  furniture,  there  must  be  a  privy  examination 
of  the  woman.  Pell's  Revisal,  §§  979,  982,  983,  989,  996-97, 
1003,  1041.  Laws  of  1909,  Chap.  335.  Laws  of  1915,  Chap. 
215,  Subdivision  2. 

Recording  or  Filing. 

In  order  to  hold  title  as  against  creditors  of  or  purchasers 
for  a  valuable  consideration  from  vendee,  the  original  contract 
must  be  registered,  which  in  effect  means  recording  the  instru- 
ment and  indexing  same  to  the  names  of  the  parties  thereto. 
There  is  no  definite  time  within  which  the  contract  must  be 
registered,  but  it  should,  if  possible,  be  done  before  the  vendee 
secures  possession  of  the  property.  The  contract  is  not  entitled 
to  registration,  unless  it  shall  have  been  duly  acknowledged  by 
vendee  in  person,  or  shall  have  been  proven  by  one  subscribing 
witness  to  the  vendee's  signature.  In  either  event  the  instru- 
ment must  be  probated  as  explained  in  the  following  paragraph. 

A  contract  of  conditional  sale  should  always  be  signed  by 
one  subscribing  witness  to  the  vendee's  signature,  and  such  wit- 
ness may  be  the  salesman  who  takes  the  order  provided  he  does 
not  also  execute  the  contract  for  and  on  behalf  of  the  vendor. 
Where  this  has  been  done  and  it  is  desired  to  register  the  con- 
tract, same  may  be  acknowledged  by  the  vendee  in  person,  or  it 
may  be  sent  to  the  subscribing  witness  and  be  sworn  to  by  him. 
The  instrument  so  acknowledged  or  proven  is  then  sent  to  the 
clerk  of  the  superior  court  of  the  county  in  which  the  vendee 
resides,  if  within  the  state,  but  if  such  vendee  be  a  non-resident 
then  to  the  same  officer  of  the  county  where  the  property  is 
situated.  It  is  the  duty  of  this  officer  to  examine  the  contract 
and  if  it  has  been  properly  executed,  and  acknowledged,  or 


NORTH    CAROLINA.  357 

proven,  to  attach  his  certificate  to  that  effect,  which  is  called 
"probating"  the  instrument.  He  will  then  upon  request,  if  the 
proper  fees  are  remitted  to  him,  turn  the  contract,  with  the  ac- 
knowledgment or  proof  and  probate  attached,  over  to  the  regis- 
ter of  deeds  in  his  county  for  registration.  Pell's  Revisal,  §§ 
979,  982,  983,  989,  996-97,  999,  1001-3,  1041.  Laws  of  1909, 
Chap.  335.    Laws  of  1915,  Chap.  215.  Subdivision  2. 

Recording  Fee. 

The  law  provides  that  such  contracts  shall  be  probated  and 
registered  for  the  same  fees  as  a  deed  of  trust  or  chattel  mort- 
gage. Fee  for  probate  25  cents,  fee  for  registration,  80  cents 
for  the  first  300  words  or  part  thereof  and  10  cents  for  each  ad- 
ditional 100  words. 

In  Nash  county  the  fee  for  registration  is  35  cents  on  the 
first  300  words,  or  part  thereof,  and  10  cents  for  each  additional 
100  words  on  the  excess. 

If  a  statutory  form  is  used  in  Durham,  Guilford,  Halifax, 
Rockham,  Surry  and  Wake  counties  the  fee  for  probating  is 
10  cents  and  for  registration  15  cents.  Such  a  contract  cannot 
be  used  by  the  ordinary  vendor  because  it  provides  that  both 
parties  are  residents  of  the  county  within  which  the  contract  is 
taken  and  to  be  registered.  Pell's  Revisal,  §§  982,  983,  2773, 
2776.  Laws  of  1915,  Chap.  215,  §§  i,  2,  3.  Laws  of  1915,  Chap. 
574,  §  I. 

Re-Recording  or  Renewal. 

The  contract  is  valid  for  the  term  of  three  years.  There  is 
no  provision  for  rc-recording  or  renewal.  Harrington  v.  Skin- 
ner et  al,  117  N.  C.  47,  23  S.  E.  90;  In  re :  Franklin,  151  Fed.  642. 

Discharge. 

There  is  a  provision  in  the  laws  of  this  state  for  discharge 
of  chattel  mortgages  and  deeds  of  trust,  from  record  after  pay- 


358  CONDITIONAL  SALES. 

ment,  but  no  penalty  is  provided  for  failure  to  make  such  dis- 
charge. There  is  no  express  provision  covering-  conditional 
sale  contracts,  but  it  is  alw^ays  advisable  upon  request  of  ven- 
dee or  any  other  proper  party  to  discharge  such  a  contract 
from  record  after  payment  in  full  has  been  received.  Pell's  Re- 
visal,  §  1046. 

Criminal  Liability  of  Vendee. 

No  provision. 

Loss,  Who  Must  Bear. 

Where  property  shall  have  been  delivered  under  condi- 
tional sale  agreement  and  is  destroyed  before  payment  in  full, 
the  loss  falls  upon  vendee.  Tufts  v.  Griffin,  107  N.  C.  47,  12  S. 
E.  68;  Whitlock  v.  Auburn  Lumber  Co.,  145  N.  C.  120,  58  S. 
E.  909. 

Fixtures. 

Where  property  held  under  conditional  contract  of  sale 
is  attached  to  a  building  in  such  a  manner  that  it  may  be  re- 
moved without  material  damage  to  the  building  or  to  itself, 
the  vendor  may  have  possession  upon  default ;  but  v^rhere  same 
becomes  incorporated  into  the  building  in  such  a  manner  that 
its  removal  will  cause  great  injury  to  the  building,  or  to  the 
property,  it  cannot  be  taken  possession  of.  Where  vendor  is 
denied  return  of  his  property  he  should  bring  an  action  in  equity 
to  have  the  balance  unpaid  under  his  contract  declared  a  lieri 
upon  the  building  itself.  Clark  Bros.  v.  Hill,  117  N.  C.  11,  23 
S.  E.  91 ;  Belvin  v.  Raleigh  Paper  Co.,  123  N.  C.  138,  31  S.  E. 
655 ;  Union  Trust  Company  v.  Southern  Sawmills  &  Lumber 
Co.,  166  Fed.  193. 

Landlord's  Lien, 

A  landlord  has  no  lien  upon  property  held  in  his  tenant's 
possession  under  conditional  contract  of  sale.  Pell's  Revisal, 
§  1993- 


NORTH    CAROLINA.  359 

Notes. 

The  giving  of  notes  under  a  conditional  sale  contract  does 
not  ordinarily  supersede  such  agreement,  and  is  only  a  conven- 
ient method  of  evidencing  deferred  payments.  If,  however, 
too  great  a  part  of  the  contract  is  included  in  the  notes,  it  may 
become  necessary  to  record  same  and  the  notes  are  made  non- 
negotiable.    Bristol  V.  Pearson,  107  N.  C.  562,  12  S.  E,  451. 

Election  of  Remedies. 

No  cases  found. 

Repossession  and  Refund. 

That  in  all  sales  of  personal  property  wherein  the  title  is 
retained  by  the  seller  to  secure  the  purchase  money  or  any  part 
thereof,  and  no  power  of  sale  is  conferred  and  default  is  made 
in  the  payment  of  said  obligation  by  the  purchaser,  then  in  all 
such  cases  it  shall  be  lawful  for  the  owner  of  such  debt  thereby 
secured,  without  an  order  of  court,  to  sell  such  property  or  so 
much  thereof  as  shall  be  necessary  to  pay  off  said  indebtedness 
at  public  auction  for  cash,  after  first  giving  twenty  days'  notice 
at  three  or  more  public  places  in  the  county  wherein  the  sale  is 
to  be  made,  and  apply  the  proceeds  of  such  sale  to  the  discharge 
of  said  debt,  interest  on  the  same,  and  costs  of  foreclosure  and 
pay  any  surplus  to  the  person  legally  entitled  thereto.  That 
before  making  any  such  sale,  in  addition  to  the  advertisement 
above  required,  the  owner  of  said  debt  shall,  at  least  ten  days 
before  the  day  of  sale,  mail  a  copy  of  the  notice  of  sale  to  the 
last  known  post  office  address  of  the  original  purchaser  or  his 
assigns.  Laws  of  1913,  Chap.  60,  §  i.  Puffer  Mfg.  Co.  v.  Lucas, 
112  N.  C.  377,  17  S.  E.  174;  Hamilton  v.  Highlands,  144  N.  C. 
279,  56  S.  E.  929. 

Railroad  Equipment. 

Any  delivery  of  railroad  equipment  or  rolling  stock  under 
conditional  sale  contract,  lease,  or  bailment  with  option  to  pur- 


360  CONDITIONAL  SALES. 

chase,  shall  be  invalid  as  to  subsequent  judgment  creditors,  or 
subsequent  purchasers  for  valuable  consideration,  and  without 
notice,  unless  the  contract  be  in  writing  duly  acknowledged 
and  registered  in  the  office  of  the  register  of  deeds,  in  at  least 
one  county  of  the  state  in  which  said  vendee,  lessee,  or  bailee 
does  business ;  each  locomotive  or  car  so  sold,  leased  or  loaned 
shall  have  the  name  of  the  vendor,  lessor  or  bailor,  or  the  as- 
signee of  such  vendor,  lessor  or  bailor  plainly  marked  on  each 
side  thereof,  followed  by  the  word  "owner,"  "lessor"  or 
"bailor"  or  "assignee,"  as  the  case  may  be.  Pell's  Revisal,  § 
984. 

Forms. 

PROOF  BY  SUBSCRIBING  WITNESS. 

State  of  North  Carolina,    j 

ss. '. 
County  of  Dunham.  ^ 

The  execution  of  the  foregoing  contract  was  this  day 
proven  before  me  by  the  oath  and  examination  of  John  Seward 
Davis,  the  subscribing  witness  thereto. 

John  Seward  Davis. 

Witness  my  hand  and  notarial  seal 
this  I2th  day  of  July,  1917. 

Harvey  E.  Andrews, 

Notary  Public  in  and  for  • . 

notarial  ) 
seal.      ) 

PROBATE. 

The   foregoing   certificate   of    Harvey   E.    Andrews,   notary 
public,   is    adjudged   to    be    sufficient.     Let   the   instrument   to- 
gether with  the  certificate  be  registered. 
This  I2th  day  of  July,  1917. 

Howard  McComb, 
Clerk  of  Superior  Court  for  Dunham  County. 


NORTH    CAROLINA.  361 

ACKNOWLEDGMENT  BY  AN  INDIVIDUAL. 

State  of  North  Carolina,  ) 
County  OF  Dunham.  C 

I,  Henry  Adams,  a  notary  public  in  and  for  said  state  and 
county,  do  hereby  certify  that  Willis  P.  Landreth  personally 
appeared  before  me  this  day  and  acknowledged  the  due  execu- 
tion of  the  foregoing  instrument. 

Witness  my  hand  and  official  seal  this  12th  day  of  July, 
A.  D.  1917. 

Henry  Adams, 

Notary  Public  in  and  for . 

^  notarial  I 

)        SEAL.        (" 


ACKNOWLEDGMENT  BY  CORPORATION. 

State  of  North  Carolina,  ) 

'  ss. : 
County  of  Dunham.  \ 

This  1 2th  day  of  July,  A.  D.  191 7,  personally  came  before 
me  Charles  E.  Rowe,  a  notary  public,  Myron  L.  Clark  who,  be- 
ing by  me  duly  sworn,  says  that  he  is  the  president  (presiding 
member  or  trustee)  of  the  Mineral  Reduction  Company,  and 
that  the  seal  affixed  to  the  foregoing  (or  annexed)  instrument 
in  writing  is  the  corporate  seal  of  the  company,  and  that  the 
said  writing  was  signed  and  sealed  by  him  in  behalf  of  said  cor- 
poration by  its  authority  duly  given.  And  the  said  Myron  L. 
Clark  acknowledged  the  said  writing  to  be  the  act  and  deed  of 
said  corporation. 

Charles  E.  Rowe. 

Notary  Public  in  and  for -. 

(  notarial  I 

/       SEAL.         \ 


362  CONDITIONAL  SALES. 

Under  Chapter  335,  Laws  of  1909,  it  is  provided  specially 
that  a  conditional  sale  contract  signed  in  the  name  of  a  corpora- 
tion by  its  president,  secretary,  or  treasurer,  in  his  official  ca- 
pacity may  be  acknowledged,  or  proven^  and  ordered  to  regis- 
tration as  is  provided  by  law  for  the  execution,  probate,  and 
registration  of  deeds  by  natural  persons.  The  foregoing  forms 
would  therefore  apply  to  corporations,  and  any  person  could  be 
the  subscribing  witness.  A  corporation  vendee  should  always 
affix  its  corporate  seal  to  the  contract. 

As  to  all  instruments  (including  conditional  sale  contracts) 
where  same  are  executed  by  corporations,  and  are  to  be  regis- 
tered, the  more  formal  methods  of  proof  required  in  this  state 
may  be  used  if  desired. 

PROOF  BY  A  CORPORATION. 

State  of  North  Carolina, 


ss  ' 
County  of  Dunham 

This  I2th  day  of  July  A.  D,  1917,  personally  came  before 
me  Milton  R.  Sweet,  a  notary  public,  Eugene  A.  Moore,  who, 
being  by  me  duly  sworn  says  that  he  knows  the  common  seal 
of  the  Mineral  Reduction  Company,  and  is  also  acquainted 
with  Paul  A.  Large,  who  is  the  president  (or  presiding  mem- 
ber or  trustee)  and  also  with  George  T.  Lee  and  Dudley  R. 
Field,  two  other  members  of  said  corporation,  and  that  he,  the 
said  Eugene  A.  Moore,  saw  the  said  president  (or  presiding 
member  or  trustee)  and  the  two  said  other  members  sign  the 
instrument,  and  saw  the  said  president  (or  presiding  member 
or  trustee)  affix  the  said  common  seal  of  the  said  corporation 
thereto,  and  that  he,  the  said  subscribing  witness,  signed  his 
name  as  such  subscribing  witness  thereto  in  their  presence. 

Witness  my  hand  and  official  seal,  this  12th  day  of  July, 
1917. 

Milton  R.  Sweet, 

Notary  Public  in  and  for . 

notarial 

seal. 


north  carolina.  363 

State  of  North  Carolina,  ) 
County  OF  Dunham.  j 

This  I2th  day  of  July  A,  D.  191 7,  personally  came  before 
me  Milton  R.  Sweet,  a  notary  public,  Fred  C.  Jones,  who  being 
by  me  duly  sworn,  says  that  he  knows  the  common  seal  of  the 
Mineral  Reduction  Company  and  is  acquainted  with  Paul  A. 
Large,  who  is  the  president  of  said  corporation  and  that  he, 
the  said  Fred  C.  Jones  is  the  secretary  (or  assistant  secretary) 
of  the  said  corporation,  and  saw  the  said  president  sign  the  fore- 
going (or  annexed)  instrument,  and  saw  the  said  common  seal 
of  said  corporation  affixed  to  said  instrument  by  said  president 
(or  by  the  said  Fred  C.  Jones,  secretary  or  assistant  secretary) 
and  that  he  the  said  Fred  C.  Jones  signed  his  name  in  attesta- 
tion of  the  execution  of  said  instrument,  in  the  presence  of  said 
president  of  said  corporation. 

Witness  my  hand  and  official  seal  this  12th  day  of  July, 

1917. 

Milton  R.  Sweet, 

Notary  Public  in  and  for . 

(  notarial 

)        SEAL. 


State  of  North  Carolina,  | 
County  of  Dunham.  ^ 

This  is  to  certify  that  on  the  12th  day  of  July,  1917,  before 
me  personally  came  Paul  A.  Large  (president,  vice-president, 
secretary  or  assistant  secretary,  as  the  case  may  be),  with  whom 
I  am  personally  acquainted,  who,  being  by  me  duly  sworn, 
says  that  Paul  A.  Large  is  the  president  (or  vice-president)  and 
Fred  C.  Jones  is  the  secretary  (or  assistant  secretary)  of  the 
Mineral  Reduction  Company,  the  corporation  described  in, 
and  which  executed  the  foregoing  instrument,  that  he  knows 
the  common  seal  of  said  corporation ;  that  the  seal  affixed  to 
the  foregoing  instrument  is  said  common  seal,  and  the  name  of 
the  corporation  was  subscribed  thereto  by  the  said  president 


364  CONDITIONAL  SALES. 

(or  vice-president),  and  the  said  president  (or  vice-president) 
and  secretary  (or  assistant  secretary)  subscribed  their  names 
thereto,  and  said  common  seal  was  affixed,  all  by  order  of  the 
board  of  directors,  of  said  corporation,  and  that  the  said  instru- 
ment is  the  act  and  deed  of  said  corporation. 

Witness  my  hand  and  official  seal  this  12th  day  of  July, 

1917- 

James  R.  Preston, 
Notarv  Public  in  and  for . 


(  OFFICIAL    ) 
I       SEAL.        \ 


Officers  Before  IVhom  Acknowledgments  May  Be  Taken. 

Within  the  State.  Judges  of  supreme  or  superior  courts; 
clerks  of  supreme,  superior  or  inferior  courts ;  notaries  public ; 
a  justice  of  the  peace  \vithin  his  county. 

Without  the  State  but  Within  the  United  States.  Judges  and 
clerks  of  courts  of  record ;  notaries  public ;  mayors  of  cities 
having  a  seal ;  justices  of  the  peace,  but  when  taken  before  a 
justice  of  the  peace,  a  certificate  of  authority  is  required  from 
the  clerk  of  a  court  of  record  of  the  county  in  which  such  jus- 
tice resides. 


NORTH  DAKOTA. 


Legal  Status  of  Conditional  Sale  Contracts. 

Conditional  contracts  of  sale  are  provided  for  by  statute 
law  in  this  state.  Compiled  Laws,  §  6757.  Thompson  v.  Arm- 
strong, II  N.  Da.  198,  91  N.  W.  39;  Dowajiac  Mfg.  Co.  v.  Ma- 
hon  &  One,  13  N.  D.  516,  loi  N.  W.  903 ;  Rock  Island  Plow  Co. 
V.  Western  Implement  Co.,  21  N.  D.  608,  132  N.  W.  351 ;  In  re: 
Pierce,  157  Fed,  755 ;  In  re :  Farmer's  Co-Operative  Co.,  202 
Fed.  1005;  In  re:  Farmer's  Co-Operative  Co.,  202  Fed.  1008. 

How  Executed. 

They  must  be  in  writing  signed  by  the  \endee  but  do  not 
need  to  be  signed  by  the  vendor,  the  acceptance  of  such  a  con- 
tract on  the  part  of  the  vendor  by  acting  upon  it  or  shipping  the 
goods  being  sufficient  to  make  a  binding  contract  as  between 
the  parties  thereto.  There  is,  however,  no  objection  to  the  con- 
tract being  formally  signed  and  accepted  by  the  vendor. 

Acknowledgment  or  Proof. 

Such  a  contract  is  valid  as  between  the  parties  tliereto 
without  acknowledgment  or  proof,  or  filing,  or  recording ;  but 
in  order  to  make  it  valid  and  to  hold  title  as  against  subsequent 
creditors  without  notice,  and  subsequent  purchasers  and  en- 
cumbrancers in  good  faith,  and  for  value,  the  contract  must  be 
filed.  It  is  not  necessary  that  the  instrument  be  acknowledged 
by  the  vendee,  or  vendor  before  filing,  but  it  seems  essential 
that  the  original  contract  should  be  signed  by  two  subscribing 
witnesses  to  the  vendee's  signature.  Compiled  Laws,  §§  6757, 
6758,  6763. 

365 


366  CONDITIONAL  SALES. 

Recording  or  Filing. 

In  order  to  hold  title  as  against  the  third  parties  above 
named,  the  contract  must  be  duly  signed  by  the  vendee,  and 
the  original  or  an  authenticated  copy  must  be  filed  with  the 
register  of  deeds  in  the  county  where  the  property  or  any  part 
thereof  is  situated.  No  exact  time  is  specified  within  which 
such  filing  must  be  made,  but  as  a  measure  of  prudence  the  con- 
tract should  be  filed  immediately  after  its  acceptance,  and  be- 
fore vendee  has  possession  of  the  goods.  There  is  no  provision 
for  recording. 

The  law  governing  chattel  mortgages  provides  expressly 
that  they  cannot  be  filed  unless  signed  by  two  subscribing  wit- 
nesses. The  law  as  to  conditional  contracts  of  sale  states  that 
such  contracts  shall  not  be  valid  as  to  third  parties  unless  in 
writing  and  indexed  the  same  as  a  chattel  mortgage,  but  does 
not  specifically  provide  for  the  signature  of  any  subscribing 
witness.  For  this  reason  many  recording  officers  will  accept 
and  file  a  copy  of  such  an  instrument  with  but  one  witness' 
signature  attached,  and  some  will  file  without  any  witness 
whatsoever.  There  have  been  no  court  decisions  as  to  what  are 
the  proper  requirements  and  the  question  is  still  an  open  one.  It 
would  seem,  however,  from  a  fair  and  reasonable  construction 
of  the  law  that  a  conditional  contract  of  sale  in  order  to  be 
filed  must  be  executed  in  the  same  manner  as  a  chattel  mort- 
gage, and  this  would  mean  that  it  must  be  signed  by  the  ven- 
dee and  by  two  subscribing  witnesses.  One  of  these  may  al- 
ways be  the  agent  of  the  vendor  provided  he  does  not  also  exe- 
cute the  contract  for  and  on  behalf  of  the  vendor. 

It  seems  very  probable  that  a  conditional  contract  of  sale 
if  not  witnessed  will  have  no  efifect  as  to  third  parties  even 
though  filed.    Compiled  Laws,  §§  6757,  6758,  6763. 

Recording  Fee. 

The  fee  for  filing  a  conditional  sale  contract  is  twenty-five 
cents.    Compiled  Laws,  §  351 1,  Subdivision  9. 


NORTH  DAKOTA.  367 

Re-Recording  or  Renewal. 

No  provision. 

Discharge. 

No  provision. 

Criminal  Liability  of  Vendee. 

It  is  a  crime  to  destroy,  dispose  of,  conceal  or  injure  prop- 
erty held  under  conditional  contract  of  sale,  punishable  as  a 
felony  if  the  value  of  such  property  is  more  than  $100.00,  and 
punishable  as  a  misdemeanor  if  the  value  is  $100.00  or  less. 
Compiled  Laws,  §  10248. 

Loss,  Who  Must  Bear. 

Where  property  has  been  delivered  under  conditional  sale 
agreement  and  is  destroyed  before  payment,  then  unless  such 
contract  provides  otherwise,  the  loss  falls  upon  the  vendor. 
Arthur  &  Co.  v.  Blackman,  63  Fed.  536- 

Fixtures. 

No  determination  has  been  made  as  to  the  rights  of  a  ven- 
dor where  property  held  under  a  conditional  contract  of  sale 
has  become  attached  to  a  building. 

Landlord's  Lien. 

A  landlord  has  no  Hen  for  rent  upon  property  located  on 
his  premises. 

Notes. 

No  cases  found. 

Election  of  Remedies. 

A  vendor  under  conditional  sale  contract  may  upon  breach 
thereof,  by  the  vendee,  elect  to  take  possession  of  the  property 


368  CONDITIONAL  SALES. 

covered  by  the  contract  or  he  may  waive  his  title  and  sue  for 
the  value  or  selling-  price,  but  he  cannot  have  both  such  reme- 
dies.   Poirier  Mfg.  Co.  v.  Kitts,  18  N.  D.  556,  120  N.  W.  558. 

Repossession  and  Refund. 

There  exists  in  this  state  no  provision  making  it  necessary 
that  upon  repossession  vendor  shall  repay  any  portion  of  the 
money  received.  Pfeiffer  v.  Norman,  22  N.  D.  168,  133  N. 
W.  97. 

Railroad  Equipment. 

Railroad  equipment  and  rolling  stock  may  be  delivered  un- 
der conditional  sale  contract  or  lease  with  option  to  purchase, 
but  the  term  may  not  be  longer  than  ten  years,  and  in  order  that 
such  instrument  shall  be  valid  as  to  subsequent  purchasers  in 
good  faith  and  creditors,  same  must  be  in  writing  duly  acknowl- 
edged, and  the  original  thereof  must  be  recorded  with  the  sec- 
retary of  state.  Each  locomotive  or  car  so  sold  or  leased  must 
have  the  name  of  the  vendor,  lessor  or  assignee  of  the  vendor 
or  lessor  marked  in  a  conspicuous  place  thereon  followed  by  the 
word  "owner,"  or  "lessor"  as  the  case  may  be. 

Fees  for  recording  25  cents  per  folio.  Compiled  Statutes, 
§§  4625,  4626,  129  Subdivision  16. 


OHIO. 


Legal  Status  of  Conditional  Sale  Contracts. 

Conditional  sale  contracts  are  provided  for  by  statute  law 

in  this  state.    General  Code,  §  8568.    Sage  v.  Sleutz,  23  Ohio  i  ; 

Retzsch  V.  Retzsch  Printing  Co.  et  al,  19  O.  Cir.  Ct.  R.  631 ; 

,  Boyer  v.  Knowlton  Co.,  85  O.  St.  104,  97  N.  E.  137 ;  Potter  Mfg. 

Co.  V.  Arthur,  220  Fed.  843 ;  Arthur  v.  Parsons  Co.,  224  Fed.  47. 

How  Executed. 

They  must  be  in  writing  signed  by  the  vendee  but  do  not 
need  to  be  signed  by  the  vendor,  the  acceptance  of  such  a  con- 
tract on  the  part  of  the  vendor  by  acting  upon  it  or  shipping  the 
goods  being  sufficient  to  make  a  binding  contract  as  between 
the  parties  thereto.  There  is,  however,  no  objection  to  the  con- 
tract being  formally  signed  and  accepted  by  the  vendor. 

Acknowledgment  or  Proof. 

Such  a  contract  is  valid  as  between  the  parties  thereto 
without  acknowledgment  or  proof,  or  filing  or  recording,  but 
to  make  it  valid,  and  to  hold  title  as  against  subsequent  pur- 
chasers, and  mortgagees  in  good  faith,  and  creditors,  it  must  be 
deposited  for  filing.  It  is  not  necessary  that  the  instrument  be 
acknowledged  by  the  vendor  or  vendee,  nor  that  it  be  signed 
or  proven  by  a  subscribing  witness  to  entitle  it  to  be  so  de- 
posited. 

Recording  or  Filing. 

In  order  to  hold  title  as  against  subsequent  purchasers  and 
mortgagees  in  good  faith,  and  creditors,  the  original  contract 

369 


370  CONDITIONAL  SALES. 

or  a  sworn  copy  thereof  must  be  deposited  (filed),  with  the  re- 
corder of  the  county  where  the  person  signing  the  instrument, 
if  a  resident  of  the  state,  resides  at  the  time  of  the  execution 
thereof,  and  if  not  such  resident  then  with  the  county  recorder 
of  the  county  in  which  the  property  is  situated  at  the  time  the 
contract  is  signed.  In  all  instances  the  vendor,  his  agent,  or 
attorney  must  make  an  affidavit  stating  the  amount  of  the 
claim,  and  such  affidavit  should  be  printed,  written,  or  type- 
written upon  the  instrument  which  is  filed  whether  it  be  the 
original  contract  or  a  sworn  copy  thereof.  It  is  possible  that 
such  affidavit  upon  a  separate  sheet,  where  such  sheet  is  at- 
tached to  the  contract  with  mucilage  or  other  like  substance, 
would  be  a  compliance ;  but  any  attachment  by  clip,  or  pin  or 
staple  would  make  the  filing  illegal.  No  definite  time  of  filing- 
is  provided,  but  in  order  to  avoid  all  question,  such  act  should 
be  done  before  vendee  secures  possession  of  the  property,  if 
possible.  Where  vendee  is  a  partnership  copy  must  be  filed  in 
each  county  where  a  partner  resides.  General  Code,  §  8568. 
Call  v.  Seymour,  40  O.  St.  670;  National  Cash  Register  Co.  v. 
Closs,  12  O.  Cir.  Ct.  R.  N.  S.  15;  Remington  &  Son  v.  Central 
Press  Association  Co.,  13  O.  Cir.  Ct.  R.  542;  In  re:  Sheets,  etc., 
136  Fed.  989;  Unitype  Co.  v.  Long,  143  Fed.  315;  Cincinnati 
Equipment  Co.  v.  Degnan,  184  Fed.  834;  Du  Pont  Powder  Co. 
V.  Jones  Bros.,  200  Fed.  638;  Arthur  v.  Parsons  Co.,  224  Fed.  47. 

Recording  Fee. 

The  fee  for  filing  each  instrument  is  six  cents ;  for  search- 
ing each  paper  six  cents ;  for  making  index  entries  upon  the 
filing  of  each  paper  six  cents  for  each  party  thereto.  If  twen- 
ty-four cents  is  sent  it  is  usually  accepted  by  the  filing  officer, 
where  there  is  but  one  vendor,  and  one  vendee.  General  Code, 
§  8572. 

Re-Recording  or  Renewal. 

There  is  no  provision  for  refiling  such  a  contract  and  same 
is  valid  for  the  term  of  fifteen  years.     General  Code,  §§  11221- 


OHIO.  371 

1 1224.     National  Cash  Register  Co.  v.  Farmers  Natl.  Bk.,  31 
Wkly  L.  B.  114. 

Discharge. 

There  is  no  provision  for  discharge  of  such  an  instrument 
after  payment,  and  no  express  penalty  for  failure  to  discharge. 
It  is  always,  however,  advisable  upon  request  of  the  vendee  or 
any  other  proper  party,  to  discharge  such  a  contract  from  rec- 
ord after  payment  in  full  has  been  received. 

Criminal  Liability  of  Vendee. 

Whoever  with  intent  to  defraud,  sells,  secretes,  destroys, 
converts  to  his  own  use.  or  otherwise  disposes  of  chattels, 
goods,  merchandise,  or  personal  property,  the  possession  of 
which  has  been  given  to  him  in  trust,  pledge,  bailment,  or  on 
deposit,  or  under  an  agreement  to  purchase  it  on  installment 
payments  or  otherwise ;  and  any  person  so  holding  such  prop- 
erty who  with  intent  to  defraud,  removes  it  beyond  the  county 
wherein  it  is  stipulated  such  property  shall  be  kept,  shall  be 
fined  not  more  than  $500.00,  or  imprisoned  not  more  than  three 
months  or  both.    General  Code.  §  12475. 

Loss,  Who  Must  Bear. 

No  cases  found. 

Fixtures. 

When  the  payments  on  a  conditional  contract  of  sale  fail, 
and  the  property  held  under  such  contract  has  been  fastened 
to  a  building  in  such  a  manner  that  it  may  be  removed  without 
material  injury  to  the  building  or  to  itself,  the  courts  of  this  state 
have  decided  that  the  vendor  is  entitled  to  possession.  If,  however, 
the  property  has  been  so  attached  to  the  building  as  to  become 
a  material  part  thereof,  and  incapable  of  being  removed  with- 


372  CONDITIONAL  SALES. 

out  great  injury  to  the  building  or  to  itself,  the  property  cannot 
be  taken  possession  of  and  the  vendor's  remedy  is  by  action  in 
equity  to  have  the  amount  unpaid  charged  as  a  lien  against  the 
building  itself.  Case  Mfg.  Co.  v.  Garven,  45  O.  St.  289,  13  N. 
E.  493;  In  re:  Superior  Drop  Forge  &  Manufacturing  Co..  208 
Fed.  813. 

Landlord's  Lien. 

There  is  no  provision  of  law  giving  the  landlord  a  lien  for 
rent  upon  property  located  on  his  premises. 

Notes. 

The  giving  of  notes  under  a  conditional  sale  contract  does 
not  ordinarily  supersede  such  contract  and  is  only  a  convenient 
method  of  evidencing  deferred  payments.  If,  however,  too 
great  a  part  of  the  contract  is  included  in  the  notes,  it  may  be- 
come necessary  to  record  same  and  the  notes  are  made  non- 
negotiable.    Arthur  v.  Parsons  Co.,  224  Fed.  47. 


Election  of  Remedies. 

A  vendor  under  conditional  sale  contract  cannot  have  both 
a  money  judgment  for  the  price  and  later  a  return  of  the  prop- 
erty, in  case  such  judgment  is  not  paid.  Retaking  of  the  prop- 
erty would  also  operate  as  an  election  and  prevent  suit  for  the 
balance  unpaid.  A  vendor  can  foreclose  his  common  law  lien 
in  this  state  and  cause  the  property  to  be  sold  for  the  purpose 
of  paying  the  balance  remaining.  Albright  v.  Meredith,  58 
Ohio  St.  194,  50  N.  E.  719;  In  re:  National  Cash  Register  Co., 
174  Fed.  579. 

Repossession  and  Refund. 

Where  the  vendor  takes  possession  of  the  property  under 
conditional  contract  of  sale  because  of  failure  on  the  part  of 


OHIO.  373 

the  vendee  to  perform  his  contract  and  the  amount  paid  by  the 
vendee  exceeds  twenty-five  per  cent,  of  the  contract  price,  the 
vendor  must  tender  back  the  money  so  paid  after  deducting 
therefrom  a  reasonable  compensation  for  the  use  of  the  prop- 
erty. This  compensation  shall  in  no  case  exceed  50  per  cent, 
of  the  total  amount  paid  by  the  vendee  unless  the  property  has 
been  broken  or  actually  damaged,  when  a  reasonable  compen- 
sation  for   such   breakage   or   damage   may  also   be   deducted. 

If  the  property  is  taken  possession  of  by  the  vendor  with- 
out tendering  the  prescribed  amount  he  is  guilty  of  a  misde- 
meanor punishable  by  a  fine  of  not  more  than  $100.00. 

The  regulations  stated  above  do  not  apply  where  the  prop- 
erty in  question  is  machinery  equipment  and  supplies  for  rail- 
roads or  contractors,  or  for  manufacturing  brick,  cement  and 
tiling,  or  for  quarrying  and  mining  purposes,  in  such  case  no 
repayment  is  necessary  upon  repossession. 

By  foreclosing  the  common  law  lien  all  necessity  for  re- 
fund is  obviated.  General  Code,  §  12464.  Speyer  &  Co.  v. 
Baker,  59  O.  St.  11.  51  N.  E.  442;  National  Cash  Register  Co.  v. 
Cervone,  76  O.  St.  12,  80  N.  E.  1033;  Chicago  Cottage  Organ 
Co.  V.  Crambert,  78  O.  St.  149,  84  N.  E.  788;  Croneis  Bros.  v. 
Toledo  Computing  Scale  Co.,  89  O.  St.  168,  106  N.  E.  5 ;  Good- 
man V-  Manning,  5  O.  Nisi  P.  94;  Gavanaugh  v.  Bloom  et  al, 
8  O.  Nisi  P.  6;  Caldwell  v.  Singer  Sewing  Machine  Co.,  7  O. 
Cir.  Ct.  R.  460,  Aff'd  35  Law  Bull.  379;  Chicago  Cottage  Organ 
Co.  V.  Biggs,  et  al,  22  O.  Cir.  Ct.  392;  Metropolitan  Tr.  Co.  v. 
R.  R.  Equipment  Co.,  108  Fed.  913 ;  In  re :  National  Cash  Regis- 
ter Co.,  174  Fed.  579;  Arthur  v.  Parsons  Co.,  224  Fed.  47. 

Railroad  Equipment. 

Railroad  equipment  or  rolling  stock,  or  other  personal 
property  to  be  used  in  or  about  the  operation  of  a  railroad,  may 
be  delivered  under  conditional  sale  contract  or  lease  with  option 
to  purchase;  but  in  order  that  same  shall  be  valid  as  against 


374 


CONDITIONAL  SALES. 


creditors,  or  innocent  purchasers  for  value,  the  contract  must 
be  in  writing,  and  the  original  or  a  copy  thereof  recorded  or 
filed  with  the  secretary  of  state. 

The  provisions  above  stated  shall  apply  not  only  to  con- 
tracts made  with  a  railroad  company,  as  vendee  or  lessee,  but 
also  to  all  contracts  which  may  be  made  with  any  corporation, 
company,  or  person  as  vendee  or  lessee,  by  which  such  corpora- 
tion, company,  or  person  undertakes  to  purchase  rent,  lease,  or 
hire  railroad  equipment,  cars,  rolHng  stock,  or  other  personal 
property,  designed  for  use  on,  or  in  connection  with  a  railroad 
or  railroads  in  this  or  other  states. 

Fees  for  filing  $1.00- 

Fees  for  recording  20  cents  per  folio.  General  Code,  §§ 
9060-9063,  176  Subdivision  17.  Ky.  Contracting  &  Building 
Co.  V.  Continental  Trust  Co.,  108  Fed.  i  ;  Metropolitan  Tr.  Co. 
V.  R.  R.  Equipment  Co.,  108  Fed.  913. 

Forms. 

AFFIDAVIT  FOR  FILING  WHERE  VENDOR  IS  NOT  A 
CORPORATION. 

State  of  Ohio, 


ss 

County  of  Clermont. 

Robert  B.  Thompson,  being  duly  sworn,  says  he  is  the 
vendor  (i)  named  in  the  written  contract,  a  copy  of  which 
is  hereto  attached;  that  of  the  amount  specified  to  be  paid  for 
the  safe  described  in  said  contract,  there  is  unpaid  the  said  ven- 
dor the  sum  of  $95.00. 

Robert  B.  Thompson. 

Subscribed  and  sworn  to  before  me 
this  I2th  day  of  July,  1917. 

Stephen  H.  Spotts, 
Notary  Public  in  and  for . 


(i)     Affidavit  may  be  made  by  the  agent  or  attorney  of 
vendor. 


OHIO.  375 

AFFIDAVIT  FOR  FILING  WHERE  VENDOR  IS  A 
CORPORATION. 

State  of  Ohio,  ) 

V  SS  ' 

County  of  Butler,   j 

Osborn  D.  Reilly,  being  duly  sworn,  says  he  is  agent  (2) 
for  the  Cary  Safe  Company,  a  corporation,  the  vendor  named  in 
the  written  contract,  a  copy  of  which  is  hereto  attached ;  that 
of  the  amount  specified  to  be  paid  for  the  safe  described  in  said 
contract  there  is  unpaid  the  said  vendor  the  sum  of  $225.00. 

Osborn  D.  Reilly, 

Subscribed  and  sworn  to  before  me 
this  1 2th  day  of  July,  191 7. 

Wallace  R.  Mackie, 
Notary  Public  in  and  for . 


Officers  Before  Whom  Acknowledgments  May  Be  Taken. 

Within  the  State.  The  judge  or  clerk  of  any  court  of  record ; 
any  probate  or  police  judge ;  county  auditors ;  county  survey- 
ors; notaries  public;  justices  of  the  peace. 

Without  the  State  but  Within  the  United  States.  Commis- 
sioners appointed  by  the  governor.  Also  any  acknowledgment 
in  conformity  with  the  laws  of  the  state  where  taken,  is  valid 
in  Ohio. 

(2)  Affidavit  may  be  made  by  any  authorized  officer,  at- 
torney or  agent  of  the  corporation. 


376  CONDITIONAL  SALES   (OHIo). 


OKLAHOMA. 


Legal  Status  of  Conditional  Sale  Contracts. 

Conditional  contracts  of  sale  are  provided  for  by  statute 
law  in  this  state.  Revised  Laws,  §  6745.  Central  Loan  &  Trust 
Co.  V.  Campbell  Commission  Co.,  5  Okl.  396,  49  Pac.  48;  Mc- 
Iver  et  al  v.  Williamson  et  al,  19  Okl.  454,  92  Pac.  170;  Akin 
V.  Baldwin  Piano  Co.,  162  Pac.  221;  In  re:  Columbus  Buggy 
Co.,  143  Fed.  859;  Peoples  Electric  Ry.  Co.  v.  McKeen  Motor 
Car  Co.,  214  Fed.  73. 


How  Executed. 

They  must  be  in  writing  signed  by  the  vendee  but  do  not 
need  to  be  signed  by  the  vendor,  the  acceptance  of  such  a  con- 
tract on  the  part  of  the  vendor  by  acting  upon  it  or  shipping 
the  goods  being  sufficient  to  make  a  binding  contract  as  be- 
tween the  parties  thereto.  There  is,  however,  no  objection  to 
contract  being  formally  signed  and  accepted  by  the  vendor. 

Acknowledgment  or  Proof. 

Such  a  contract  is  valid  as  between  the  parties  thereto, 
without  acknowledgment,  or  proof,  or  filing,  or  recording;  but 
in  order  to  make  it  valid,  and  to  hold  title  as  against  innocent 
purchasers  from,  or  creditors  of  vendee,  there  must  be  a  filing. 
It  is  not  necessary  that  the  contract  be  acknowledged  by  the 
vendee  or  vendor,  nor  that  it  be  either  signed  or  proven  by  a 
subscribing  witness,  or  witnesses  to  the  vendee's  signature,  in 
order  to  be  so  filed.  Revised  Laws,  §  6745.  Grenville  etc. 
Bank  v.  Evans  et  al,  9  Okl.  353,  60  Pac.  249;  Shafer  v.  Natl. 

377 


27^  CONDITIONAL  SALES. 

Cash  Register  Co.,  i6  Okl.  117,  82  Pac.  646;  Twitchell  Co.  v. 
1st  National  Bk.  of  Lawton,  18  Okl.  375.  90  Pac.  14. 


Recording  or  Filing. 

There  is  no  provision  for  recording"  conditional  contracts 
of  sale  in  this  state.  Filing  is,  however,  required  to  hold  title 
as  against  innocent  purchasers  from  or  creditors  of  the  vendee, 
and  the  original  contract  duly  signed  by  vendee,  or  a  true  copy 
thereof  must  be  filed  with  the  register  of  deeds  for  the  county 
where  the  property  or  any  part  thereof  is  situated.  Where  such 
property  is  situated  in  a  portion  of  the  state  attached  to  an  or- 
ganized county  for  judicial  purposes,  the  instrument  must  be 
filed  in  the  office  of  the  register  of  deeds  for  such  county.  No 
exact  time  is  specified  within  which  the  contract  must  be  filed, 
but  in  order  to  avoid  all  question,  this  should  be  done  immedi- 
ately after  the  contract  is  accepted,  and  before  vendee  has  pos- 
session of  the  property.  No  witnesses  are  required.  Revised 
Laws,  §§  4031,  4032,  4035,  4036,  6745.  Smith  Premier  Type- 
writer Co.  V.  Grace,  28  Okl.  844,  115  Pac.  1019;  Money  weight 
Scale  Co.  v.  Hale  Halsell  Gro.  Co..  156  Pac.  1187;  In  re:  John- 
son, 212  Fed.  311. 

Recording  Fee. 

The  fee  for  filing  and  indexing  a  conditional  sale  con- 
tract including  the  certificate  of  having  done  so,  is  twenty-five 
cents.    Revised  Laws,  §  3204. 

Re-Recording  or  Renewal. 

Where  property  covered  by  conditional  sale  contract  is 
moved  into  this  state,  or  is  removed  from  one  county  to  an- 
other within  the  state,  any  previous  filing  of  the  contract  shall 
not  operate  as  notice  against  subsequent  creditors,  purchasers, 
mortgagees,  or  incumbrancers,  for  a  longer  period  than  120 
days    after    such    removal ;   but   a   copy   of    such   contract   must 


OKLAHOMA. 


379 


be  refiled  with  the  register  of  deeds  for  the  county  to  which 
the  chattel  is  removed,  and  in  which  it  is  permanently  located. 

The  law  as  to  chattel  mortgages  requires  that  same  shall 
be  renewed  within  30  days  immediately  preceding  the  end  of 
three  years  from  the  previous  filing.  The  conditional  sale  law 
provides  that  such  contracts  shall  be  filed,  and  states  that  when 
so  filed  the  law  applicable  to  chattel  mortgages  shall  apply. 
This  leaves  the  question  of  renewal  in  doubt,  and  as  there  has 
been  no  court  decision  upon  the  point,  prudence  advises  refil- 
ing. The  method  of  such  renewal  if  to  be  made,  is  by  filing 
a  copy  of  the  contract  with  the  register  of  deeds  for  the  county 
in  which  the  vendee  then  resides,  and  in  like  manner  each  three 
years  thereafter.  To  the  copy  of  contract  in  each  instance,  must 
be  attached  a  statement  of  the  amount  of  the  existing  debt  for 
which  the  vendor  or  his  assigns  claims  a  lien,  subscribed  and 
sworn  to  by  such  party,  his  agent  or  attorney.  Fee  for  refiling 
is  twenty-five  cents.  (The  Author's  opinion  is  that  no  refiling 
of  a  conditional  sale  contract  is  necessary  and  same  is  valid  for 
the  term  of  five  years).  Revised  Laws,  §§  3204,  4032,  4035. 
National  Cash  Register  Co.  v.  Paulson,  16  Okl.  204,  83  Pac. 
793- 

Discharge. 

There  is  provision  for  discharge  of  a  chattel  mortgage  after 
payment  in  full,  and  penalty  for  failure  to  comply;  but  con- 
ditional sale  contracts  are  not  required  to  be  discharged  or  sat- 
isfied after  payment.     Revised  Laws,  §§  4037,  4043. 

Criminal  Liability  of  Vendee. 
No  provision. 

Loss,  Who  Must  Bear. 

A  vendor  under  conditional  sale  agreement  having  made 
an  absolute  promise  to  pay  is  not  relieved  because  the  property 
is  injured  or  destroyed.  Harley  t'v:  Willis  v.  Stanley,  25  Okl.  89, 
105  Pac.  188. 


380  CONDITIONAL  SALES. 

Fixtures. 

Where  property  delivered  under  conditional  sale  contract 
has  been  fastened  to  a  building  in  such  a  manner  that  it  may 
be  removed  without  material  injury  to  the  building  or  to  itself, 
the  courts  of  this  state  have  decided  that  the  vendor  is  entitled 
to  possession  upon  default.  Where  the  property  has  been  so 
attached  to  a  building  as  to  become  a  material  part  thereof  and 
where  same  cannot  be  removed  without  great  injury  to  the 
building  or  to  itself,  the  property  cannot  be  recovered  in  specie, 
but  it  is  probable  that  a  lien  for  the  balance  unpaid  can  be  en- 
forced against  the  building  in  an  action  of  equity.  Great  West- 
ern Mfg.  Co.  V.  Bathgate  et  al,  15  Okl.  87,  79  Pac.  903 ;  Lawton 
etc.  Tile  Co.  v.  Ross  Kellar  etc.,  33  Okl.  59,  124  Pac.  43. 

Landlord's  Lien. 

A  landlord  has  no  lien  for  rent  on  property  located  upon 
his  premises. 

Notes. 

No  cases  found. 

Election  of  Remedies. 

A  vendor  cannot  have  both  the  property  and  payment.  If 
he  shall  sue  for  the  purchase  price,  that  act  is  an  election,  and 
the  converse  would  undoubtedly  be  true — that  taking  back  the 
property  would  operate  as  a  release  to  the  vendee.  Osborne 
&  Co.  V.  Walther,  12  Okl.  20,  69  Pac.  953. 

Repossession  and  Refund. 

There  is  no  provision  of  law  in  this  state  making  a  vendor 
liable  for  any  refund  upon  repossession.  McCormick  Harvest- 
ing Machine  Co.  v.  Koch  et  al,  8  Okl.  374,  58  Pac.  626;  Scott  v. 
Vulcan  Iron  Works,  31  Okl.  334,  122  Pac.  186. 


OKLAHOMA.  381 

Railroad  Equipment. 

Where  railroad  or  street  railway  equipment  or  rolling'  stock 
is  delivered  on  conditional  sale  contract  or  lease  with  option 
to  purchase  the  instrument  must  be  in  writing,  and  in  order  to 
be  valid  as  to  subsequent  bona  fide  purchasers  for  value  and 
without  notice  it  must  be  acknowledged  by  the  vendee  or  lessee 
or  bailee,  or  be  proved  as  deeds  of  real  estate  are  required  to 
be  proved ;  and  be  then  recorded  in  the  office  of  the  secretary 
of  state.  Also  each  locomotive,  engine  or  car  so  sold,  leased, 
or  hired  shall  have  the  name  of  the  vendor,  lessor,  or  bailor 
plainly  marked  on  each  side  thereof,  followed  by  the  word 
owner"  or  "lessor"  or  "bailor"  as  the  case  may  be.  When 
paid  for  in  full  the  contract  may  be  discharged  by  recording 
with  the  secretary  of  state  a  written  declaration  to  that  effect 
acknowledged  by  the  vendor,  or  lessor,  or  bailor  or  his  or  its 
assignee.  A  written  declaration  in  like  effect  may  be  made  by 
the  vendor,  or  lessor,  or  bailor  or  his  or  its  assignee,  on  the 
margin  of  the  record,  duly  attested  by  the  secretary  of  state. 

Fees  to  the  secretary  of  state  are  $2.00  for  recording  such 
contract,  or  such  declaration  and  $1.00  for  noting  declaration  of 
discharge  on  the  margin  of  the  record.  Revised  Laws,  §§  1391, 
1392. 


382  CONDITIONAL  SALES  (OKLAHOMA), 


OREGON. 


Legal  Status  of  Conditional  Sale  Contracts. 

Conditional  contracts  of  sale  are  regulated  by  statute  law 
where  the  property  involved  becomes  thereafter  so  attached  to 
real  estate  as  to  become  a  fixture  thereon.  As  to  ordinary  per- 
sonal property  not  so  attached  the  common  law  rule  prevails,  and 
same  are  valid  as  to  all  third  persons.  Lord's  Oregon  Laws, 
§  7414.  Singer  Mfg.  Co.  v.  Graham  et  al,  8  Ore.  17;  Christen- 
son  V.  Nelson,  38  Ore.  473,  63  Pac.  648;  Herring  etc.  Co.  v. 
Smith,  43  Ore.  315,  ^2.  Pac.  704;  International  Harvester  Co.  v. 
Bauer,  162  Pac.  856;  In  re:  Rasmussen's  Estate,  136  Fed.  704; 
Meier  &  Frank  Co.  v.  Sabin,  214  Fed.  231 ;  In  re:  Roellich,  223 
Fed.  687. 


How  Executed. 

They  must  be  in  writing  signed  by  the  vendee  but  do  not 
need  to  be  signed  by  the  vendor,  the  acceptance  of  such  a  con- 
tract on  the  part  of  the  vendor  by  acting  upon  it  or  shipping  the 
goods  being  sufficient  to  make  a  binding  contract  as  between 
the  parties  thereto.  There  is,  however,  no  objection  to  the  con- 
tract being  formally  signed  and  accepted  by  the  vendor. 


Acknowledgment  or  Proof. 

Such  a  contract  is  valid  as  to  all  parties  without  acknowl- 
edgment or  proof  or  filing  or  recording,  except  where  the  prop- 
erty involved  becomes  thereafter  so  attached  to  real  estate  as  to 
become  a  fixture  thereto.    No  witness  is  required  in  any  event. 

383 


384  CONDITIONAL  SALES. 

Recording  or  Filing. 

Where  the  contract  covers  ordinary  personal  property 
which  does  not  thereafter  become  so  attached  to  real  estate,  as 
to  make  it  a  fixture,  then  no  recording  or  filing  is  necessary.  In 
case  the  property  does  thereafter  become  so  attached  to  real 
estate  as  to  make  it  a  fixture,  it  shall  be  void  as  to  any  pur- 
chaser, incumbrancer  or  mortgagee  of  such  real  estate,  unless 
within  10  days  after  such  attachment  a  memorandum  of  such 
sale  stating  its  terms  and  conditions,  together  with  a  brief  de- 
scription of  said  personal  property,  so  as  to  identify  it,  and 
signed  by  the  vendor  and  vendee  (the  original  contract)  with 
a  notice  endorsed  thereon  or  attached  thereto,  signed  by  the 
vendor  or  his  agent  describing  such  real  property,  shall  be  filed 
in  the  office  of  the  county  clerk,  or  recorder,  of  the  county 
where  such  property  and  real  estate  shall  be  situated.  Lord's 
Oregon  Laws,  §  7414.  Maxson  v.  Ashland  Iron  Works,  166 
Pac.  37. 

Recording  Fee. 

Fees  for  filing  and  indexing  twenty-five  cents.  Lord's 
Oregon  Laws,  §  7415. 

Re-Recording  or  Renewal. 

There  is  no  provision  for  re-recording  or  renewal  and  the 
contract  is  valid  for  the  term  of  six  years. 

Discharge. 

Such  contracts  must  be  discharged  after  payment  in  full, 
upon  demand  and  tender  of  the  reasonable  charges  therefor; 
and  a  refusal  or  neglect  for  the  space  of  10  days,  to  so  discharge 
renders  the  vendor,  or  his  personal  representative  or  assignee 
liable  to  a  penalty  of  $100  and  all  actual  damages.  The  satisfac- 
tion may  be  made  upon  the  margin  of  the  record  duly  attested 


OREGON.  385 

by  the  county  clerk  or  recorder  or  his  deputy;  or  a  written  cer- 
tificate of  satisfaction  duly  acknowledged  or  proved  may  be 
recorded.  Fees  for  recording  ten  cents  per  folio  (100)  words. 
Fees  for  noting  satisfaction  on  the  margin  of  the  record  twen- 
ty-five cents.  Lord's  Oregon  Laws,  §§  3109,  7137,  7138,  7141, 
7405,  7415. 


Criminal  Liability  of  Vendee. 
No  provision. 

Loss,  Who  Must  Bear. 

Xo  cases  found. 

Fixtures. 

Where  property  held  under  conditional  contract  of  sale  is 
attached  to  a  building  in  such  a  manner  that  it  may  be  removed 
without  material  damage  to  the  building  or  to  itself,  a  vendor 
is  entitled  to  possession.  If  however,  it  cannot  be  removed 
without  great  damage  to  the  building  or  to  itself,  and  thus  be- 
comes an  irremovable  fixture,  the  vendor's  remedy  would  be  an 
action  in  equity  to  charge  the  balance  unpaid  on  his  contract 
as  a  lien  upon  the  building  itself.  Henkle  v.  Dillon,  15  Ore. 
610,  17  Pac.  148;  Landigan  v.  Mayer.  2^2  Ore.  245,  51  Pac.  649; 
Blanchard  v.  Eureka  etc.  Co.,  58  Ore.  37,  113  Pac.  55. 

Landlord's  Lien. 

A  landlord  has  no  lien  for  rent  against  property  located 
on  his  premises. 

Notes. 

No  cases  found. 


386  CONDITIONAL  SALES. 

Election  of  Remedies. 

Where  two  or  more  remedies  exist  under  conditional  sale 
contract,  and  vendor  seeks  to  enforce  one  of  them,  the  others 
are  deemed  to  be  waived.  Rosendorf  &  One  v.  Baker.  8  Ore. 
240;  McDaniel  v.  Chiaramonte,  61  Ore.  403.  122  Pac.  33;  Fran- 
cis V.  Bohart,  76  Ore.  i,  147  Pac.  755. 

Repossession  and  Refund. 
No  cases  found. 


Railroad  Equipment. 

Conditional  contracts  of  sale,  or  leases  with  option  to  pur- 
chase covering  railroad  equipment  or  rolling  stock,  must  be  in 
writing,  and  in  order  that  same  shall  be  valid  as  against  any 
subsequent  judgment  creditor,  or  bona  fide  purchaser  for  value 
and  without  notice,  the  contract  must  be  acknowledged  (does 
not  say  by  whom)  and  be  recorded  in  the  county  clerk's  office 
of  the  county  wherein  the  vendee  or  lessee  has  its  principal 
place  of  business  at  the  time  such  contract  is  executed.  Each 
locomotive^  engine  or  car  so  sold  or  leased,  shall  have  the  name 
of  the  vendor  or  lessor  plainly  marked  on  each  side  thereof,  fol- 
lowed by  the  word  "owner"  or  "lessor"  as  the  case  may  be. 

Upon  payment  in  full  a  declaration  in  writing  to  that  efifect 
shall  be  made  by  the  vendor  or  his  assignee,  which  declaration 
may  be  made  on  the  margin  of  the  record,  attested  by  the 
county  clerk,  or  it  may  be  by  a  separate  instrument,  acknowl- 
edged and  recorded. 

Fees  for  recording  ten  cents  per  folio  (100  words),  five 
cents  for  indexing  each  name. 

Fees  for  noting  discharge  on  margin  of  the  record,  twen- 
ty-five cents.     Lord's  Oregon  Laws,  §§  3109,  6970-71,  7405. 


PENNSYLVANIA. 


Legal  Status  of  Conditional  Sale  Contracts. 

Conditional  contracts  of  sale  are  regulated  by  statute  law 
where  the  property  involved  is  attached  or  to  be  attached  to 
real  property  or  chattels  real.  They  are  also  valid  as  between 
the  parties  thereto  on  any  sort  of  personal  property.  (See 
General  Remarks).  (See  Conditional  Sale  Law.)  General 
Assembly  191 5,  Act  No.  386.  Purdon's  Dig.  Vol.  6  (Sup.)  Pages 
7485-87.  McCulIough  V.  Porter,  4  W.  &  S.  177 ;  Stimpson  Com- 
puting Scale  Co.  v.  Schetrompf  &  Sons,  13  Pa.  Sup.  Ct.  377; 
Rose  V.  Story,  i  Pa.  190;  Crist  v.  Kleber,  79  Pa.  290;  Thompson 
V.  Paret  &  Co.,  94  Pa.  275;  Dando  v.  Foulds,  105  Pa.  74;  Peek 
et  al  V.  Heim  et  al,  127  Pa.  500,  17  Atl.  984;  Burson  v.  Fire  As- 
sociation, 136  Pa.  267,  20  Atl.  401 ;  Collins  et  al  v.  Houston,  138 
Pa.  481,  21  Atl.  234;  Brown  Bros.  &  Co.  v.  Billington,  163  Pa. 
76,  29  Atl.  904 ;  Post  Printing  &  Pub.  Co.  v.  Insurance  Co.  of  N. 
Am.,  189  Pa.  300,  42  Atl.  192 ;  Duplex  Printing  Press  v.  Clipper 
Pub.  Co.,  213  Pa.  207,  62  Atl.  841  ;  In  re:  Hartdagan.  189  Fed. 
546;  Gen.  Electric  Co.  v.  Richardson  et  al,  233  Fed.  84. 

How  Executed. 

The  contract  should  be  in  writing  and  as  those  agreements 
which  cover  property  attached  or  to  be  attached  to  real  estate, 
or  chattels  real ;  need  to  be  signed  by  all  parties  thereto,  it  is 
advisable  to  have  all  contracts  so  executed. 

Acknowledgment  of  Proof. 

There  is  no  requirement  that  any  contract,  either  condi- 
tional' sale  or  lease  with  option  to  purchase,  shall  be  signed  by 
a  subscribing  witness,  or  be  acknowledged  or  proven. 

3^7 


388  CONDITIONAL  SALES. 

Recording  or  Filing. 

Where  the  contract  does  not  cover  property  attached  or 
to  be  attached  to  real  estate  or  chattels  real,  then  whether  the 
instrument  be  a  conditional  sale  agreement  or  lease  with  option 
to  purchase  no  recording  or  filing  is  required,  and  even  if  per- 
fected in  this  manner  no  additional  protection  will  be  afforded. 
In  those  instances  where  such  attachment  is  involved  the  con- 
tract should  be  recorded.  It  seems  evident  that  an  unrecorded 
lease  with  option  to  purchase  under  such  circumstances  is  no 
longer  available  where  the  rights  of  third  parties  are  involved. 
(See  Conditional  Sale  Law). 

Recording  Fee. 

The  fees  of  a  prothonotary  are  not  uniform  for  every 
county  in  the  state,  but  are  fixed  by  law  according  to  the  popu- 
lation of  the  county  in  which  he  acts.  As  a  general  rule  it  may 
be  said  that  a  minimum  fee  of  $1.25  is  charged  and  this  may  be 
increased  if  the  contract  is  a  long  one.  Purdon's  Dig.  Vol.  V. 
(Sup.)  Pages  6144-61 56. 


Re-Recording  or  Renewal. 

There  is  no  provision  for  re-recording  or  renewal  and  the 
contract  is  valid  for  the  term  of  six  years. 


Discharge. 

The  contract  when  recorded  must  be  discharged  upon  de- 
mand after  payment.     (See  Conditional  Sale  Law). 

Criminal  Liability  of  Vendee. 

There  is  no  provision  of  law  making  it  a  crime  to  sell  or 
dispose  of  property  held  under  conditional  sale  contract,  but 
where  the  agreement  is  a  lease  with  option  to  purchase,  and 
the  bailee  shall  fraudulently  take  or  convert  the  property  to  his 


PENNSYLVANIA.  389 

own  use,  or  to  the  use  of  any  other  person  except  the  owner 
thereof,  such  acts  shall  constitute  larceny  and  be  punishable 
upon  conviction  as  a  felony  by  a  fine  not  exceeding  $500.00  or 
imprisonment  not  exceeding  three  years.  Pepper  &  Lewis  Dig. 
Vol.  I.  Page  1239,  §§  360-361.  Purdon's  Dig.  13  Ed.  Vol.  I, 
Pages  970-71,  973,  §§  304,  310.  Kraus  v.  Commonwealth,  93  Pa. 
418;  Commonwealth  v.  Wilson,  62  Pa.  Sup.  Ct.  618. 


Loss,  Who  Must  Bear. 

Where  property  is  held  under  conditional  contract  of  sale, 
lease,  or  bailment,  and  is  injured  or  destroyed  before  payment 
in  full  the  vendor,  lessor  or  bailor  must  bear  the  loss.  This  li- 
ability could  undoubtedly  be  transferred  to  the  vendee,  lessee, 
or  bailee,  by  a  proper  provision  in  the  contract.  Reitz's  Ap- 
peal, 64  Pa.  162;  Burson  v.  Fire  Association,  136  Pa.  267. 


Fixtures. 

Where  property  covered  by  a  conditional  sale  contract  or 
lease  with  option  to  purchase  is  attached  to  real  estate  or  chat- 
tels real,  the  instrument  must  be  recorded  or  same  will  be  void 
as  to  third  parties.  What  degree  of  fastening  to,  or  incorpora- 
tion upon  or  into,  the  real  property  or  chattels  real  shall  con- 
stitute a  legal  attachment  under  this  statute  has  not  been  de- 
termined, and  the  law  as  it  stands  is  very  uncertain.  It  would 
scarcely  seem  that  the  slightest  fastening  would  suffice  to  make 
it  necessary  that  a  contract  should  be  recorded;  yet  the  object 
of  this  law  is  evidently  to  destroy  secret  liens,  and  the  only 
safe  and  sure  method  is  to  record  when  there  can  be  no  ques- 
tions raised.     (See  Conditional  Sale  Law). 


Landlord's  Lien. 

The  general  rule  is  that  all  personal  property  found  on  the 
premises  of  a  landlord  may  be  distrained  for  rent,  whether  be- 
longing to  the  tenant  or  to  a  third  person.    The  exceptions  are, 


390  CONDITIONAL  SALES. 

where  the  property  has  become  a  fixture  on  the  real  estate, 
where  it  was  placed  there  to  be  wrought,  worked  up  or  man- 
aged in  the  way  of  tenant's  trade  or  employment,  and  where 
the  chattel  is  actually  in  some  person's  hands.  Also  certain 
statutory  exemptions  (See  Exemptions).  Property  delivered 
under  conditional  sale  contract  not  recorded  would  not  be  pro- 
tected, neither  would  the  lease  or  bailment  with  option  to  pur- 
chase be  of  any  value  as  against  a  distress  for  rent.  It  is  be- 
lieved, however,  that  where  chattels  delivered  under  conditional 
sale  contract  are  attached  to  real  estate,  and  such  contract  is 
recorded  before  such  attachment,  then  the  landlord's  lien  would 
be  subsequent.  Such  a  lien  may  always  be  waived  by  an  in- 
strument in  writing  founded  upon  a  valuable  consideration  to 
the  landlord.  Pepper  &  Lewis  Dig.  Vol.  i.  Pages  2635-2646. 
Purdon's  Dig.  Vol.  2,  Pages  2174-2186.  Purdon's  Dig.  Vol.  6, 
(Sup.)  Page  6512.  Kessler  v.  McConachy,  i  Rawle  435;  Price 
V.  McCallister,  3  Grant  248 ;  Beltzhoover  v.  Waltman,  i  W.  & 
S.  416;  Harris  &  Shaw,  17  Pa.  Sup.  Ct.  i  ;  Karns  v.  McKinney, 
74  Pa.  387;  Whiting  v.  Lake,  91  Pa.  349;  Myers  v.  Esery  et  al, 
134  Pa.  177,  19  Atl.  488;  Rohrer  v.  Cunningham,  138  Pa.  162, 
20  Atl.  872;  American  Pig  Iron  etc.  Co.  v.  Iron  &  Coal  Co.,  205 
Pa.  403,  54  Atl.  1047;  Liquid  Carbonic  Co.  v.  Truby,  40  Pa. 
Sup.  Ct.  634. 

Exemptions. 

Hereafter  all  pianos,  melodeons,  organs,  leased  or  hired  by 
any  person  or  persons  residing  in  this  commonwealth  shall  be 
exempt  from  levy  and  sale  on  execution  or  distress  for  rent  due 
by  such  person  or  persons  so  leasing  or  hiring  any  such  piano 
or  pianos,  melodeon  or  melodeons,  or  organ  or  organs  in  addi- 
tion to  any  articles  or  money  now  exempt  by  law. 

Provided :  That  the  owner  or  owners  of  any  such  piano, 
melodeon  or  organ  or  his  or  their  agent  or  the  person  or  per- 
sons so  leasing  or  hiring  the  same  shall  give  notice  to  the  land- 
lord or  his  agent  that  the  instrument  is  leased  or  hired.  Act  of 
May  13,  1876,  P.  L.  171. 


PENNSYLVANIA.  39I 

An  act  to  exempt  sewing  machines  and  typewriting  ma- 
chines, leased  or  hired,  from  levy  or  sale  on  execution  or  dis- 
tress for  rent. 

Section  i.  Be  it  enacted,  etc. — "That  hereafter  all  sewing 
machines  and  typewriting  machines,  leased  or  hired  by  any  per- 
son or  persons  residing  in  this  commonwealth,  shall  be  exempt 
from  levy  and  sale  on  execution  or  distress  for  rent  due  by 
such  person  or  persons  so  leasing  or  hiring  any  such  sewing 
machine  or  sewing  machines,  typewriting  machine  or  typewrit- 
ing machines,  in  addition  to  any  articles  or  money  exempt  by 
law. 

"Provided,  that  the  owner  or  owners  of  such  sewing  ma- 
chine or  sewing  machines,  typewriting  machine  or  typewriting 
machines,  or  his  or  their  agents  or  the  person  or  persons  so 
leasing  or  hiring  the  same,  shall  give  notice  to  the  landlord  or 
his  agent  that  the  instrument  is  leased  or  hired." 

Act  of  June  25th.  1895,  P.  L.  282. 

An  act  to  exempt  electric  motors,  electric  fans  or  dynamos, 
leased  or  hired  from  levy  or  sale  on  execution  or  distress  for 
rent. 

Section  i.  Be  it  enacted:  "That  hereafter  all  electric  mo- 
tors, electric  fans  or  dynamos  leased  or  hired  by  any  person 
or  persons  residing  in  this  commonwealth  shall  be  exempt  from 
levy  and  sale  on  execution  or  distress  for  rent  due  by  such  per- 
son or  persons  so  leasing  or  hiring  any  such  electric  motors, 
electric  fans  or  dynamos,  in  addition  to  any  article  or  money 
now  exempt  by  law, 

"Provided,  that  the  owner  or  owners  of  such  electric  mo- 
tors, electric  fans  or  dynamos  or  his  or  their  agent  or  the  per- 
son or  persons  leasing  or  hiring  the  same  shall  give  notice  to 
the  landlord  or  his  agent,  within  ten  days  after  such  instrument 
or  ai)paratus  is  placed  upon  the  demised  premises,  that  the  in- 
strument or  apparatus  is  leased  or  hired."  Act  of  May  3rd, 
1909,  P.  L.  407. 


392  CONDltlONAL  SALES. 

An  act  exempting  soda  water  apparatus  and  appurtenances 
thereto,  leased,  hired  or  conditionally  sold  from  levy  and  sale 
on  execution  or  distress  for  rent. 

Section  I.  Be  it  enacted :  "That  hereafter  all  soda  water  ap- 
paratus and  appurtenances  thereto,  leased  or  hired  by  any  per- 
son or  persons  residing-  within  this  commonwealth,  or  condi- 
tionally sold  to  any  such  person  or  persons  under  a  contract  of 
sale  reserving  title  in  the  vendor  until  paid  for,  shall  be  exempt 
from  levy  and  sale  on  execution  or  distress  for  rent  so  long  as 
the  title  thereto  remains  in  the  owner,  lessor  or  conditional 
vendor, 

"Provided:  That  either  the  name  and  address  of  owner, 
lessor  or  conditional  vendor  of  such  soda  water  apparatus  be 
marked  on  or  be  attached  to  said  soda  water  apparatus,  on  a 
conspicuous  part  thereof;  or  that  before  levy  or  distress  the 
owner,  lessor  or  conditional  vendor  of  such  soda  water  appara- 
tus and  appurtenances  or  his  or  their  agent  or  person  or  per- 
sons so  leasing,  hiring  or  purchasing  the  same,  shall  have  given 
notice  to  the  landlord  or  his  agent  that  the  same  are  leased, 
hired  or  sold  under  reservation  of  title." 

Section  II.  "All  acts  or  parts  of  acts  inconsistent  herewith 
be  and  the  same  are  hereby  repealed."  Act  of  May  3rd,  1909, 
P.  L.  423. 

Notes. 

The  giving  of  notes  following  a  conditional  sale  contract, 
or  a  lease  with  option  to  purchase,  is  permitted  and  does  not 
supersede  the  original  contract.  Levan  v.  Wilten,  135  Pa.  61, 
19  Atl.  945;  Kelly  Springfield  Road  Roller  Co.  v.  Spyker,  215 
Pa.  332,  64  Atl.  546 ;  Lippincott  v.  Scott,  198  Pa.  283,  47  Atl. 
1 1 15;  Kelly  Springfield  Road  Roller  Co.  v.  Schlimme,  220  Pa. 
413,  69  Atl.  867;  Link  Machinery  Co.  v.  Continental  Tr.  Co.. 
227  Pa.  37,  75  Atl.  985  ;  Lippincott  &  Co.  v.  Holden,  11  Pa.  Sup 
Ct.  15;  Walton  V.  Tepel,  210  Fed.  161. 


PENNSYLVANIA.  393 


Election  of  Remedies. 


Where  action  is  brought  against  the  vendee  or  lessee  and  a 
money  judgment  obtained  for  the  purchase  price  or  the  rent, 
vendor  or  lessor  is  deemed  to  have  waived  his  rights  under  the 
contract  and  cannot  afterward  replevin  the  property.  As  well 
where  the  property  is  taken  upon  default,  no  recovery  can  there- 
after be  had  for  the  money  owing.  Jacob  v.  Groff,  19  Pa.  Sup. 
Ct.  144;  Ketcham  v.  Davis,  31  Pa.  Sup.  Ct.  583;  Rowe  v. 
Sharpe,  51  Pa.  26;  Ferguson  v.  Rafiferty,  128  Pa.  337,  18  Atl. 
484;  Campbell  etc.  Co.  v.  Hickok,  140  Pa.  290,  21  Atl.  362;  Scott 
V.  Hough,  151  Pa.  630,  35  Atl.  123;  Ferguson  v.  Lauterstein, 
160  Pa.  427,  28  Atl.  852;  Seanor  &  One,  v.  McLaughlin,  165 
Pa.  150,  30  Atl.  717;  Durr  v.  Replogle,  167  Pa.  347,  31  Atl.  645 ; 
In  re :  Norton,  181  Fed.  901 ;  Arctic  Ice  Machine  Co.  v.  Arm- 
strong etc.,  192  Fed.  114. 

Repossession  and  Refund. 

Where  property  held  under  conditional  sale  contract  or 
lease  with  option  to  purchase,  is  repossessed  upon  default  the 
vendor  or  lessor  is  liable  to  repay  vendee  or  lessee  the  full 
amount  received  under  the  contract,  less  a  reasonable  rental  for 
the  use  of  said  property  while  in  vendee's  or  lessee's  possession, 
and  less  an  amount  equal  to  any  depreciation  in  value  of  said 
property  by  damage  or  injury  over  and  above  ordinary  wear 
and  tear,  which  it  may  have  sustained  while  in  vendee's  or 
lessee's  possession.  This  liability  might  be  avoided  by  a  prop- 
erly worded  clause  in  the  contract  permitting  vendor  or  lessor 
to  retain  as  rent  all  money  received.  North  &  Co.  v.  Williams, 
120  Pa.  109,  13  Atl.  723 ;  Simon  v.  Edmundson  &  One,  10  Pa. 
Co.  Ct.  315  ;  Hineman  v.  Mathews.  138  Pa.  204,  20  Atl.  843. 


Railroad  Equipment. 

Whenever  any  raih-oad  equipment  and  rolling  stock  shall 
hereafter  be  sold,  leased  or  loaned,  on  the  condition  that  the 
title  to  the   same,  notwithstanding  the   possession  and  use  of 


394  CONDITIONAL  SALES. 

the  same  by  the  vendee,  lessee  or  bailee,  shall  remain  in  the  ven- 
dor, lessor  or  bailor,  until  the  terms  of  the  contract,  as  to  the 
payment  of  the  installments,  amounts  or  rentals  payable,  or  the 
performance  of  other  obligations  thereunder,  shall  have  been 
fully  complied  with,  such  contract  shall  be  invalid  as  to  any 
subsequent  judgment  creditor,  or  any  subsequent  purchaser  for 
a  valuable  consideration  without  notice,  unless : 

I.  The  same  shall  be  evidenced  by  writing  duly  acknowl- 
edged before  some  person  authorized  by  law  to  take  acknowl- 
edgments of  deeds. 

II.  Such  writing  shall  be  recorded  in  the  same  book  as 
mortgages  are  recorded,  in  the  office  of  the  recorder  of  deeds 
of  the  county  in  which  is  located  the  principal  office  or  place 
of  business  of  such  vendee,  lessee  or  bailee,  within  the  state. 

III.  Each  locomotive  or  car  so  sold,  leased  or  loaned, 
shall  have  the  name  of  the  vendor,  lessor  or  bailor,  or  the  as- 
signee of  such  vendor,  lessor  or  bailor,  plainly  marked  upon 
both  sides  thereof,  followed  by  the  word,  "owner,"  "lessor," 
"bailor,"  or  "assignee,"  as  the  case  may  be.  Purdon's  Digest,  Vol. 
IV,  p.  3917. 

General  Remarks. 

A  contract  in  the  form  of  a  chattel  mortgage  is  not  avail- 
able to  retain  a  lien  in  the  mortgagee  upon  personal  property, 
even  though  acknowledged  and  recorded,  except  for  railroad 
equipment  and  certain  articles  connected  with  the  coal  and 
iron  industry  (Pepper  &  Lewis'  Digest,  Vol.  I,  pp.  1605-14,  §§ 
160-184;  Vol.  II,  p.  3964,  §  149).  In  those  instances  where  the 
personal  property  becomes  attached  to  real  estate  or  chattels 
real,  a  conditional  sale  contract  or  a  lease  with  option  to  pur- 
chase must  be  recorded  in  order  to  protect  the  original  owner 
as  against  the  rights  of  third  parties.  Where  such  personal 
property  shall  not  become  attached  to  real  estate  or  chattels 
real,  then  a  lease  or  bailment  with  option  to  purchase  is  the 


PENNSYLVANIA.  395 

proper  method  for  retaining  security  upon  personal  property 
which  is  not  to  be  paid  for  at  the  time  of  deHvery. 

The  questions  arising  where  attempts  have  been  made  to 
retain  a  lien  or  title  in  the  vendor  until  the  purchase  price  is 
paid  have  been  extensively  litigated  in  this  state  and  the  de- 
cisions are  somewhat  confused  as  to  the  distinction  between 
contracts  held  to  be  conditional  sales  and  those  held  to  be  bail- 
ments or  leases. 

The  agreements  passed  upon  in  the  following  cases  have 
been  held  to  be  bailments  and  valid  as  against  third  parties  in 
favor  of  the  bailor  or  lessor.  Myers  v.  Harvey,  2  P.  &  W.  478; 
Clark  V.  Jack,  7  Watts.  375 ;  Lehigh  Co.  v.  Field,  8  W.  &  S. 
232;  Wieder  v.  Roschman,  13  Pa.  Co.  Ct.  94;  Jones  v.  Wands, 
et  al,  I  Pa.  Sup.  Ct.  269;  Lippincott  &  Co.  v.  Holden,  11  Pa. 
Sup.  Ct.  15;  Stimpson  Computing  Scale  Co.  v.  Schetrompf  & 
Son,  13  Pa.  Sup.  Ct.  377;  Painter  v.  Snyder,  22  Pa.  Sup.  Ct. 
603;  Ketcham  v.  Davis,  31  Pa.  Sup.  Ct.  583;  Miller  v.  Douglas, 
32  Pa.  Sup.  Ct.  158;  Nat'l  Cash  Register  Co.  v.  Shurber,  41  Pa. 
Sup.  Ct.  187;  King  V.  Humphreys,  10  Pa.  217;  Chamberlin  v. 
Smith,  44  Pa.  431  ;  Rowe  v.  Sharpe,  51  Pa.  26;  Henry  &  Co, 
V.  Patterson,  57  Pa.  346;  Becker  v.  Smith,  59  Pa.  469;  Enlow  v. 
Klein,  79  Pa.  488;  Dando  v.  Foulds,  105  Pa.  74;  Wheeler  & 
Wilson  Mfg.  Co.  v.  Heil  et  al,  115  Pa.  487,  8  Atl.  616;  Wertz  et 
al  v.  Collender  Co.,  6  Pa.  Cases  361,  9  Atl.  331  ;  Ditman  v.  Cot- 
trell  &  Sons,  125  Pa.  606,  17  Atl.  504;  Goss  Printing  Press  Co. 
V.  Jordan,  171  Pa.  474,  32  Atl.  1031  ;  Lippincott  v.  Scott,  198 
Pa.  283,  47  Atl.  1115 ;  Stiles  v.  Seaton,  200  Pa.  114,  49  Atl.  774 
American  Car  &  Fdry  Co.  v.  R.  R.  Co.,  218  Pa.  519,  67  Atl.  838 
Link  Mach'y  Co.  v.  Continental  Tr.  Co.,  227  Pa.  37,  75  Atl.  985 
In  re:  Angeny,  151  Fed.  959;  Walton  v.  Tepel.  210  Fed.  161. 

The  agreements  passed  upon  in  the  following  cases  have 
been  held  to  be  conditional  contracts  of  sale  and  not  valid  as  to 
third  parties:  Martin  v.  Mathiot,  14  S.  &  R.  214;  Jenkins  v. 
Eichelberger,  4  Watts.  121 ;  Henrice  Laundry  Machy.  Co.  v. 
Fromuth,  22  Pa.  Co.  Ct.  49 ;  Ladley  v.  U.  S.  Express  Co.,  3  Pa. 


396  CONDITIONAL  SALES. 

Sup.  Ct.  149;  Harper  v.  Hogue,  10  Pa.  Sup.  Ct.  624;  Prichett 
V.  Cook,  62  Pa.  193;  Haak  v.  Linderman  &  One,  64  Pa.  499; 
Stadtfeld  v.  Huntsman  &  Co.,  92  Pa.  53;  Brunswick  &  Balke 
Co.  V.  Hoover  et  al,  95  Pa.  508 ;  Forrest  v.  Nelson  Bros.  &  Co., 
108  Pa.  481  ;  Wire  Book  Mach.  Co.  v.  Crowell,  4  Pa.  Cases  499, 
8  Atl.  22;  Dearborn  v.  Raysor,  132  Pa.  231,  20  Atl.  690;  Sum- 
merson  v.  Hicks  et  al,  134  Pa.  566,  19  Atl.  808;  Farquhar  v. 
McAlevy,  142  Pa.  233,  21  Atl.  811;  Stoddart  v.  Price,  143  Pa. 
537,  22  Atl.  811;  Ott  V.  Sweatman.  166  Pa.  217,  31  Atl.  102; 
Morgan-Gardner  Electric  Co.  v.  Brown,  193  Pa.  351,  44  Atl. 
459;  Duplex  Printing  Press  Co.  v.  Clipper  Pub.  Co.,  213  Pa. 
207,  62  Atl.  841  ;  Kelly  Road  Roller  Co.  v.  Spyker,  215  Pa.  332, 
64  Atl.  546;  In  re:  Tice,  139  Fed.  52;  In  re:  Morris,  156  Fed. 
597;  In  re:  Rinker,  174  Fed.  490,  modified  but  not  on  this  point, 
182  Fed.  603;  In  re :  G.  &  K.  Trunk  Co.,  176  Fed.  1007;  In  re: 
Franklin  Lbr.  Co.,  187  Fed.  281 ;  In  re :  Gehris-Herbine  Co., 
188  Fed.  502;  Miller  Pasteurizing  Machine  Co.  v.  Conway,  214 
Fed.  485. 

It  is  definitely  settled,  however,  that  while  an  owner  may 
lease  personal  prop£rty  by  a  contract  in  writing,  he  cannot 
provide  specifically  that  the  title  shall  remain  in  him  until  cer- 
tain stated  amounts  of  money  are  paid,  and  this  is  not  neces- 
sary as  he  is  in  fact  the  owner. 

In  such  a  lease  there  must  be  a  provision  that  the  property 
in  question  is  to  be  returned  to  the  lessor  when  the  term  of  the 
lease  is  ended.  The  contract  may,  however,  provide  that  if  the 
rent  as  specified  is  paid,  the  lessee  may  thereupon  elect  to  be- 
come the  owner  of  the  leased  property. 

The  distinction  then  between  contracts  held  to  be  condi- 
tional sales  and  not  available  against  bona  fide  purchasers  and 
other  third  parties,  and  contracts  held  to  be  bailments  or  leases 
and  absolute  protection  against  all  third  parties  except  land- 
lords, may  be  briefly  stated  as  follows : 

If  the  contract  provide  that  title  to  the  property  is  retained 
in  the  vendor  until  certain  payments  are  made,  and  that  a  bill 


PENNSYLVANIA. 


397 


of  sale  for  same  Avill  be  executed  to  the  vendee  after  such  cer- 
tain payments  are  received,  and  where  there  is  no  specified 
term  of  leasing  and  no  agreement  for  return  of  the  property, 
the  contract  is  a  conditional  sale  which  in  this  state  means  it  is 
an  absolute  sale  as  to  all  third  parties,  unless  recorded  as  herein 
provided. 

If,  on  the  other  hand,  the  instrument  provides  for  a  definite 
term  of  leasing,  with  certain  rent  to  be  paid,  and  for  return  of 
the  property  at  the  end  of  such  term,  it  is  a  lease  or  bailment, 
even  though  it  provide  that  upon  receipt  of  the  full  rent  for  the 
term  as  specified,  the  lessee  or  vendee  may  elect  to  become,  and 
shall  thereupon  become  the  owner  of  the  leased  property  with- 
out further  payment.  There  can,  however,  be  no  express  pro- 
vision for  retention  of  title  by  the  vendor  or  lessor,  and  no  ex- 
press provision  for  the  giving  of  a  bill  of  sale  as  the  decisions 
hold  that  such  agreements  are  entirely  inconsistent  with  a 
lease.  In  many  of  the  earlier  decisions  it  was  held  that  the  les- 
see after  payment  in  full  of  the  rent  as  specified,  might  elect  to 
purchase  the  property  by  paying  a  further  consideration,  how- 
ever small.  In  the  most  recent  cases  before  the  highest  court 
of  the  state,  it  has  been  decided  that  such  payment  of  a  further 
consideration  is  not  essential  and  that  the  election  alone  is  suf- 
ficient. 

Such  a  lease  should  be  signed  by  all  parties  thereto  but  no 
acknowledgment  or  proof  is  required,  and  where  the  property  is 
not  attached  or  to  be  attached  to  real  estate  or  chattels  real  it  does 
not  need  to  be  either  filed  or  recorded  to  hold  title  as  against  all 
third  parties  except  a  landlord's  lien  for  rent. 

Where  there  is  a  question  as  to  which  class  a  contract  be- 
longs and  a  levy  under  execution,  attachment  or  otherwise  is 
made  on  the  property  involved,  the  vendor  upon  learning  the 
facts  should  immediately  telegraph  the  officer  in  charge  to  the 
efifect  that  the  property  in  cjuestion  is  leased  to  the  lessee  or 
vendee  and  that  same  should  not  be  sold.  This  information 
should  be  confirmed  by  registered  letter  to  the  officer,  and  an 
attorney  immediately  secured  to  attend  the  advertised  sale  and 


398  CONDITIONAL  SALES. 

give  notice  to  all  parties  of  the  bailor's  or  vendor's  claim  of 
title.  The  officer  so  notified  will  very  seldom  if  ever  dispose  of 
the  property,  except  subject  to  the  vendor's  or  bailor's  title,  and 
any  person  buying  at  such  a  sale  after  the  notice  given  is  held 
in  most  cases  to  be  not  a  bona  fide  purchaser  for  value,  but  only 
as  taking  the  property  subject  to  the  vendor's  or  bailor's  right. 

In  case  of  bankruptcy  on  the  part  of  the  vendee  w^hen  the 
contract  is  in  fact  one  of  conditional  sale,  the  status  of  the  ven- 
dor varies  with  the  conditions.  If  the  vendee  is  declared  a  bank- 
rupt or  forced  to  make  an  assignment  under  state  law  and  a 
trustee  is  appointed  by  the  court,  there  is  no  remedy  for  the 
vendor  and  he  must  accept  his  dividends,  if  any  there  be,  as  an 
unsecured  creditor.  If,  however,  the  assignment  is  under  the 
state  law  and  is  voluntary  the  trustee  gets  no  better  title  than 
the  assignor  had  and  where  the  purchaser  at  such  trustee's  sale 
has  had  notice  of  the  vendor's  title  before  the  sale,  he  takes  the 
property  subject  to  the  lien. 

In  any  case  where  the  contract  is  in  fact  a  conditional  sale, 
and  has  not  been  recorded  as  herein  provided,  the  general 
rule  applies  that  a  sale  without  notice  to  an  innocent  pur- 
chaser for  value  is  valid.  If  the  vendee  has  sold  or  given 
a  lien  upon  the  property  to  an  innocent  third  party  for  value,  or 
if  under  levy  by  execution  or  attachment  or  otherwise,  the  prop- 
erty has  been  sold  by  the  officer  before  notice  to  such  officer 
and  to  the  purchaser  as  heretofore  indicated,  the  buyer  gets 
good  title  and  the  vendor  loses  his  lien  or  interest. 

The  importance  of  having  a  proper  contract  for  use  in  the 
state  of  Pennsylvania  cannot  be  too  strongly  stated.  The  con- 
ditional sale  contract  is  enforceable  between  the  parties  thereto, 
and  where  the  property  covered  is  attached  to  real  estate  and 
the  contract  has  been  recorded  same  may  be  enforced  as  against 
third  parties.  In  those  instances  where  the  personal  property 
is  not  attached  to  a  building  and  the  rights  of  third  parties  in- 
tervene, the  lease  or  bailment  form  of  contract  properly  drawn 
with  an  option  to  purchase  is  the  only  safe  method  to  pursue. 


PENNSYLVANIA.  399 

CONDITIONAL  SALE  LAW. 

Section  i.  Be  it  enacted  by  the  Senate  and  House  of  Rep- 
resentatives of  the  Commonwealth  of  Pennsylvania  in  General 
Assembly  met  and  it  is  hereby  enacted  by  the  authority  of  the 
same,  That  the  terms  "conditional  sale"  when  used  in  this  act 
means  any  contract  whereby  goods  or  chattels  attached  or  to 
be  attached  to  real  property  or  chattels  real  are  sold  or  de- 
livered upon  condition  that  the  said  goods  or  chattels  shall 
belong  to  the  person  to  whom  they  are  sold  or  delivered  when 
the  amount  paid  is  a  certain  sum  or  the  value  of  the  property 
or  any  part  thereof  or  on  the  occurrence  of  a  future  event  or 
contingency.  The  term  "conditional  vendor,"  when  so  used, 
means  the  person  who  so  sells  or  delivers  such  goods  or  chat- 
tels to  another.  The  term  "conditional  vendee,"  when  so  used, 
means  the  person  to  whom  such  goods  or  chattels  are  so  sold 
or  delivered. 


Contract  for  Conditional  Sale. 

Sec.  2,  When  personal  property  attached  or  to  be  at- 
tached to  real  property  or  chattels  real  is  sold  or  delivered  to 
any  person  on  condition  that  it  shall  belong  to  the  person  pur- 
chasing or  receiving  it  when  the  amount  paid  is  a  certain  sum 
or  the  value  of  the  property,  or  any  part  thereof,  or  upon  the 
occurrence  of  a  future  event  or  contingency,  the  title  to  it  to 
remain  in  the  conditional  vendor  until  such  sum  or  value  has 
been  paid  or  until  the  occurrence  of  such  future  event  or  con- 
tingency, such  condition  in  regard  to  the  title  so  remaining 
until  payment  or  until  the  occurrence  of  such  future  event  or 
contingency  shall  be  void  as  to  all  subsequent  purchasers  of 
such  real  property  or  chattels  real  for  a  valuable  consideration, 
mortgagees  and  judgment  creditors,  without  notice,  unless  the 
contract  with  its  conditions  is  evidenced  by  writing,  signed  by 
the  parties  thereto,  or  their  respective  agents,  and  recorded  as 
hereinafter  provided. 


400  CONDITIONAL  SALES. 

This  act  is  not  to  apply  to  any  contract  concerning  railroad 
equipment  and  rolling  stock  or  to  any  persons,  firms  or  cor- 
porations engaged  in  the  business  of  selling  house  furnishings. 


Not  To  Become  Fixtures. 

Sec.  3.  Every  such  contract  for  the  conditional  sale  of  any 
goods  or  chattels  attached,  or  to  be  attached,  to  any  real  prop- 
erty or  chattels  real  shall  be  void  as  against  subsequent  bona 
fide  purchasers  or  encumbrancers  of  such  real  property  or  chat- 
tels real  without  notice  and  as  to  them  the  sale  shall  be  deemed 
absolute  unless  such  contract  shall  have  been  recorded  and  in- 
dexed as  herein  provided  before  such  goods  or  chattels  are  so 
attached  or  before  the  date  of  such  purchase  or  encumbrance 
of  such  real  estate  or  chattel  real. 

Except  as  above  provided,  said  goods  or  chattels  shall  not 
by  reason  of  their  being  attached  to  any  real  property  or  chat- 
tels real  become  an  accession  thereto,  but  shall  be  treated  as 
severable  and  subject  to  removal  as  against  the  conditional 
vendee,  his  heirs,  executors,  administrators,  successors  and  as- 
signs, and  also  as  against  all  other  persons  having  any  interest 
in  or  liens  against  such  real  property  or  chattels  real  upon  the 
tender  of  a  sufficient  bond  to  all  such  persons  holding  prior  in- 
terests in  or  liens  -against  the  same  conditioned  for  repairing 
all  damage  caused  by  such  severance  and  removal. 

Contents  of  Contract. 

Sec.  4.     Every  such  contract  shall  set  forth  clearly : 

A.  The  date  of  the  contract. 

B.  The  names  of  the  conditional  vendor  and  the  condi- 
tional vendee. 

C.  A  description  of  the  chattels  by  name  or  otherwise 
sufficient  to  identify  them. 

D.  A  statement  of  the  conditions  upon  which  the  condi- 
tional sale  is  based. 


PENNSYLVANIA.  4OI 

E.  The  amount  of  the  purchase  price — that  is,  the  certain 
sum  or  value  to  be  paid  before  title  is  to  pass — and  when  pay- 
able or  due. 

F.  A  description  sufficient  for  identification  and  location 
of  such  real  property  or  chattels  real. 

The  contract  shall  be  signed  by  the  conditional  vendor  and 
conditional  vendee,  or  their  respective  agents,  and  shall  be  veri- 
fied by  the  oath  or  affirmation  of  the  conditional  vendor,  his 
agent  or  attorney,  to  the  efTect  that  it  is  an  existing  bona  fide 
contract,  and  showing  the  amount  of  the  purchase  price  re- 
maining unpaid,  and  when  payable  or  due,  as  well  as  all  other 
of  the  said  conditions  which  remain  unperformed. 

Recording — Place — Time. 

Sec.  5.  Such  contracts,  or  all  of  the  terms  required  by  Sec- 
tion Four  hereof,  shall  be  recorded  and  shall  be  notice  from  the 
date  of  such  recording  in  the  miscellaneous  docket  and  indexed 
in  the  judgment  index,  the  name  of  the  conditional  vendee  in 
the  column  of  defendants,  and  the  name  of  the  conditional  ven- 
dor in  the  column  of  plaintiffs,  in  the  prothonotary's  office  of 
the  county  wherein  such  real  property  or  chattels  real  is  situate. 

Effect  of  Recording. 

Sec.  6.  Every  such  contract  hereafter  recorded,  pursuant 
to  the  provisions  of  this  act,  shall  be  valid  against  the  creditors 
of  the  conditional  vendee,  and  against  his  subsequent  purchas- 
ers, mortgagees,  or  judgment  creditors,  from  the  time  of  the 
recording  thereof  until  the  same  be  cancelled  of  record  in  the 
manner  now  provided  by  law  for  cancelling  judgments. 

Penalty  for  not  Discharging. 

Sec.  7.  If  a  conditional  vendor,  assignee  or  the  executor 
or  administrator  of  either,  after  the  title  to  such  goods  or  chat- 


402  CONDITIONAL  SALES. 

tels  shall  have  passed  to  the  conditional  vendee,  either  before 
or  after  breach  of  the  conditions,  does  not,  within  ten  days  after 
being  thereto  requested,  and  after  tender  of  reasonable  charges, 
discharge  such  lien  as  provided  herein,  he  shall  forfeit  to  the 
person  entitled  to  redeem,  the  sum  of  ten  dollars  and  damages 
occasioned  thereby,  to  be  recovered  as  debts  of  like  amount  are 
by  law  recoverable. 


Vendor's  Rights. 

Sec.  8.  Upon  the  breach  of  the  said  conditions,  or  any  of 
them,  by  the  conditional  vendee,  the  conditional  vendor  may, 
after  five  days'  written  notice  to  the  conditional  vendee,  his 
agent  or  attorney,  of  his  intention  so  to  do  (unless  the  pro- 
visions of  said  contract  are  before  complied  with)  repossess 
himself  of  the  property  so  conditionally  sold  or  delivered,  but 
the  same  is  not  to  be  taken  out  of  the  county  in  which  it  then 
is  within  fifty  days  after  such  taking. 

Said  notice  shall  name  the  amount  due  and  owing  on  said 
contract  and  shall  be  served  personally  upon  the  conditional 
vendee,  or  his  successor  in  interest,  if  he  is  within  the  county 
where  the  sale  is  to  be  held ;  and,  if  not  within  such  county  or 
he  cannot  be  found  therein,  such  notice  must  be  mailed  to  him 
at  his  last  known  place  of  residence. 

Should  the  conditional  vendee  demand  it  by  written  notice 
properly  served  on  the  conditional  vendor,  his  agent  or  attor- 
ney within  ten  days  after  such  taking,  it  shall  be  the  duty  of 
the  conditional  vendor,  his  agent  or  attorney,  after  thirty  days 
and  not  more  than  forty  days  after  such  taking,  to  cause  such 
property  to  be  exposed  at  public  sale  at  a  convenient  place  in 
the  county  where  located,  after  giving  notice  by  publication 
once  a  week  for  three  successive  weeks  in  one  newspaper  pub- 
lished in  the  county  and  by  at  least  ten  printed  or  written  hand 
bills  posted  in  public  and  conspicuous  places  in  the  vicinity 
where  the  sale  is  to  take  place. 


PENNSYLVANIA.  4O3 

At  such  sale  the  conditional  vendor  may  become  the  pur- 
chaser if  he  is  the  highest  and  best  bidder. 

The  proceeds  of  the  sale  shall  be  distributed,  first,  to  the 
costs  and  expenses  incident  to  the  sale;  secondly,  to  the  debt 
secured,  and  lastly,  the  surplus,  if  any,  shall  be  paid  over  to 
the  conditional  vendee,  his  executors,  administrators  or  as- 
signs. Any  time  before  sale  had,  the  conditional  vendee  or  his 
successors  in  interest  shall  have  the  right  to  redeem  said  prop- 
erty by  complying  with  the  terms  of  such  contract  and  paying 
the  legal  costs  then  accrued,  as  herein  provided.  Gen.  Assem- 
bly 191 5,  Act  No.  386. 


AFFIDAVIT  FOR  RECORD. 

State  of  Pennsylvania,  / 

-.  ss  ■ 
County  of  York.  ^ 

Charles  N.  Allen  being  duly  sworn  says  he  is  president  of 
Read  Machinery  Company,  Inc.,  the  vendor  named  in  the  at- 
tached contract ;  that  same  is  a  bona  fide  existing  contract  be- 
tween the  parties  thereto,  and  the  balance  unpaid  of  the  pur- 
chase price  is  $180.00  payable  as  follows: 

(State  terms  of  payment). 

Charles  N.  Allen, 

Subscribed  and  sworn  to  before  me 
this  1 2th  day  of  July,  191 7. 

Hiram  L.  Summers. 

Notary  Public  in  and  for . 

(  notarial  ) 


seal. 


404  CONDITIONAL   SALES    (PENNSYLVANIA). 


RHODE  ISLAND. 


Legal  Status  of  Conditional  Sale  Contracts. 

There  is  no  express  provision  in  the  laws  of  this  state  for 
conditional  contracts  of  sale,  on  ordinary  personal  property, 
but  they  are  held  valid  by  court  decisions.  Goodell  v.  Fair- 
brother,  12  R.  I.  233;  Carpenter  v.  Scott,  13  R.  I.  477;  Mosby 
V.  Goff,  21  R.  I.  494,  44  Atl.  930;  Stearns  v.  Drake,  24  R.  I.  272, 
52  Atl.  1082. 


How  Executed. 

They  should  be  in  writing  signed  by  the  vendee  but  do  not 
need  to  be  signed  by  the  vendor,  the  acceptance  of  such  a  con- 
tract on  the  part  of  the  vendor  by  acting  upon  it  or  shipping 
the  goods  being  sufficient  to  make  a  binding  contract  as  be- 
tween the  parties  thereto.  There  is,  however,  no  objection  to 
contract  being  formally  signed  and  accepted  by  the  vendor. 


Acknowledgment  or  Proof. 

Such  a  contract  is  valid  as  against  all  persons  without  ac- 
knowledgment by  the  vendee  or  vendor,  or  signing  or  proof  by 
a  subscribing  witness.  The  only  possible  exception  is  where 
the  property  has  become  a  fixture  upon  real  estate. 


Recording  or  Filing. 

There  is  no  provision  of  law  requiring  that  contracts  of 
conditional  sale  shall  be  either  filed  or  recorded. 


405 


4o6  CONDITIONAL    SALES. 

Recording  Fee. 
No  provision. 

Re-Recording  or  Renewal. 

There  is  no  provision  for  re-recording  or  renewal  and  such 
contracts  are  valid  for  the  term  of  six  years. 

Discharge. 

No  provision. 

Criminal  Liability  of  Vendee. 
No  provision. 

Loss,  Who  Must  Bear. 

No  cases  found. 

Fixtures. 

Where  personal  property  delivered  under  conditional  sale 
contract  has  been  attached  to  real  estate  in  a  permanent  man- 
ner, no  removal  can  be  had  upon  default  and  vendor's  remedy 
would  be  an  action  in  equity  to  charge  the  balance  unpaid  as  a 
lien  upon  the  building  itself.  McCrillis  v.  Cole,  25  R.  I.  156, 
55  Atl.  196;  In  re:  Regealed  Ice  Co.,  191  Fed.  931. 

Landlord's  Lien. 

A  landlord  has  no  lien  for  rent  against  property  located  on 
his  premises. 

Notes. 

No  cases  found. 


RHODE  ISLAND.  407 

Election  of  Remedies. 

No  cases  found. 

Repossession  and  Refund. 

There  seems  to  be  no  requirement  in  this  state  for  refund 
upon  repossession.  A  proper  demand  for  the  property  must, 
however,  be  made.  Putnam's  Sons  v.  McLeod,  23  R.  I.  373,  50 
Atl.  646. 

Railroad  Equipment. 

With  reference  to  railroad  or  street  railway  equipment  or 
rolling  stock,  a  contract  of  conditional  sale,  or  contract  of  leas- 
ing with  option  to  purchase  after  certain  sums  of  money  have 
been  paid,  shall  not  be  valid  as  against  subsequent  judgment 
creditors  or  subsequent  bona  fide  purchasers  for  value  and 
without  notice,  unless  the  same  shall  be  evidenced  by  a  written 
instrument  executed  by  the  parties  thereto  and  duly  acknowl- 
edged by  the  vendee,  or  lessee,  or  bailee  as  the  case  may  be, 
or  duly  proven  in  the  same  manner  as  a  deed  of  real  estate,  and 
such  instrument  is  then  filed  for  record  in  the  office  of  the  sec- 
retary of  state.  Each  locomotive,  engine  or  car  so  sold,  leased 
or  hired  or  contracted  for,  shall  have  the  name  of  the  vendor, 
lessor  or  bailor  plainly  marked  on  each  side  thereof,  followed 
by  the  name  "owner"  or  "bailor"  as  the  case  may  be. 

When  payment  in  full  shall  have  been  received  the  instru- 
ment may  be  discharged  by  a  declaration  in  writing  to  that 
effect  by  the  vendor,  lessor  or  bailor,  or  his  or  its  assignee, 
which  declaration  may  be  made  on  the  margin  of  the  record 
duly  attested,  or  it  may  be  made  by  a  separate  instrument  in 
writing  acknowledged  by  the  vendor,  lessor  or  bailor,  or  his  or 
its  assignee  and  recorded  as  aforesaid. 

For  recording  any  such  contract  or  the  discharge  thereof 
the  fees  shall  be  15  cents  per  folio  of  100  words.  The  fee  for 
noting  discharge  upon  the  margin  of  the  record  shall  be  50 
cents.  General  Laws  1909,  Title  XXI,  Chap.  215.  Page  738,  §§ 
63-64. 


408  CONDITIONAL    SALES    (rHODE   ISLAND). 


SOUTH  CAROLINA. 


Legal  Status  of  Conditional  Sale  Contracts. 

Conditional  contracts  of  sale  are  provided  for  by  statute 
law  in  this  state.  Code  of  Laws,  §  3740.  Herring  &  Company 
V.  Cannon,  21  S.  C.  212;  Ludden  &  Bates  So.  Music  House  v. 
Dusenbury,  ^y  S.  C.  464,  4  S.  E.  60;  Perkins  v.  Bank,  43  S.  C. 
39,  20  S.  E.  759 ;  Ludden  &  Bates  So.  Music  House  v.  Hornsby, 
45  S.  C.  Ill,  22  S.  E.  781 ;  Wardlaw  v.  Troy  Oil  Mill,  74  S.  C. 
368,  54  S.  E.  568;  Armour  &  Co.  v.  Ross,  78  S.  C.  294,  58  S.  E. 
941 ;  Townsend  v.  Ashepoo  Fertilizer  Co.,  212  Fed.  97;  Augusta 
Gro.  Co.  V.  Southern  Moline  Plow  Co.,  213  Fed.  786;  In  re: 
Sturckey  Co.,  224  Fed.  251. 

How  Executed. 

They  must  be  in  writing  signed  by  the  vendee  but  do  not 
need  to  be  signed  by  the  vendor,  the  acceptance  of  such  a  con- 
tract on  the  part  of  the  vendor  by  acting  upon  it,  or  shipping 
the  goods,  being  sufficient  to  make  a  binding  contract  as  be- 
tween the  parties  thereto.  There  is,  however,  no  objection  to 
the  contract  being  formally  signed  and  accepted  by  the  vendor. 

It  is  provided  that  no  mortgage,  except  a  mortgage  or  trust 
deed  covering  real  or  personal  property  of  a  railroad  or  manu- 
facturing company,  shall  be  valid,  unless  the  property  is  de- 
scribed in  writing  or  typewriting  and  not  printing,  on  the  face 
of  the  mortgage.  Also  no  prosecution  will  lie  for  selling  such 
property  unless  the  above  requirements  appear.  There  are  no 
express  provisions  along  these  lines  as  applied  to  conditional 
sale  contracts,  but  chattel  mortgages  and  such  contracts  are  so 

409 


4IO  CONDITIONAL  SALES. 

closely  allied  in  this  state,  that  as  a  measure  of  precaution  it  is 
advised  the  property  be  described  in  writing  or  typewriting 
and  not  in  printing.  Code  of  Laws,  §  4103.  Straub  v.  Screven, 
19  S.  C.  445 ;  Talbott  &  Sons  v.  Sandifer,  27  S.  C.  624,  4  S.  E. 
152. 

Acknowledgment  or  Proof. 

Such  a  contract  is  valid  as  between  the  parties  thereto 
without  witnessing,  or  acknowledgment,  or  filing,  or  recording ; 
but  in  order  to  make  it  valid,  and  to  hold  title  as  against  subse- 
quent creditors,  (whether  lien  creditors  or  simple  contract 
creditors),  or  purchasers  for  valuable  consideration  without 
notice,  it  is  necessary  that  it  be  either  filed  or  recorded  as  here- 
inafter set  forth.  To  entitle  such  a  contract  to  be  filed  it  seems 
essential  that  it  should  be  signed  by  two  subscribing  witnesses 
to  the  vendee's  signature,  and  before  it  may  be  recorded,  it 
must  be  signed  by  two  and  be  proven  by  one  subscribing  wit- 
ness to  such  vendee's  signature.  There  is  no  provision  of  law 
by  which  such  a  contract  may  be  acknowledged  in  person  by 
the  vendor  or  vendee  so  that  it  may  be  either  filed  or  recorded. 
Code  of  Laws.  §§  1352,  3453,  3740. 

Recording  or  Filing. 

In  order  to  hold  title  as  against  subsequent  creditors 
(whether  lien  creditors  or  simple  contract  creditors),  or  pur- 
chasers without  notice  and  for  valuable  consideration,  the  orig- 
inal contract  should  be  either  recorded  or  filed  within  ten  days 
after  the  time  of  its  delivery  or  execution.  Later  filing  or  re- 
cording will  be  notice  to  like  parties  from  the  date  of  such  fil- 
ing or  recording,  but  not  as  to  prior  ones.  Where  the  amount 
of  such  contract  is  $100.00  or  less,  the  original  may  be  filed  if 
signed  by  the  vendee  and  two  subscribing  witnesses,  and  it  is 
not  necessary  that  either  of  such  witnesses  prove  the  same  by  his 
oath. 

Where  the  amount  of  such  contract  is  over  $100.00  the  orig- 
inal must  be  recorded ;  and  in  order  that  same  may  be  recorded 


SOUTH   CAROLINA.  4I  I 

it  is  necessary  that  one  of  the  subscribing  witnesses  make  oath 
that  he  saw  the  contract  duly  executed  by  vendee,  and  that  such 
signature  was  witnessed  by  himself  and  by  the  other  subscrib- 
ing witness.  One  of  the  witnesses  may  be  the  salesman  for  the 
vendor  provided  he  does  not  also  execute  the  contract  for  and 
on  behalf  of  the  vendor. 

The  filing  or  recording  shall  be  made  with  the  clerk  of 
court,  or  in  the  counties  of  Charleston,  Greenville  or  Spartan- 
burg, with  the  register  of  mesne  conveyances,  of  the  county 
where  the  vendor,  or  owner  resides  if  within  the  state,  and  if 
not  such  resident,  then  with  the  like  officer  of  the  county  where 
the  property  in  c}uestion  is  located.  (It  is  possible  that  one 
subscribing  witness  may  be  all  that  is  necessary  upon  a  con- 
ditional sale  contract,  especially  where  same  is  to  be  filed,  but 
in  order  to  avoid  all  question,  two  should  be  secured).  Code 
of  Laws,  §§  1349.  1352.  1355,  3453.  3542.  3740.  Milford  v. 
Aiken,  6i  S.  C.  no,  39  S.  E.  233. 

Recording  Fee. 

The  fee  for  filing  such  a  contract  is  fifteen  cents.  The  fee 
for  recording  is  not  uniform  throughout  the  state  varying  ac- 
cording to  the  county,  but  in  general  should  be  fifty  cents  for 
recording  a  contract  not  exceeding  1,000  words  and  ten  cents 
for  each  additional  100  words.  In  Orangeburg  county  the 
charge  is  six  cents  for  each  90  words.  Certain  recording  offi- 
cers seek  to  charge  a  fixed  fee  of  $1.00  for  a  contract  of  or- 
dinary length,  but  there  seems  to  be  no  provision  of  law  justi- 
fying such  act.    Code  of  Laws,  §§  4211-4216. 

Re-Recording  or  Renewal. 

Such  a  contract  is  valid  for  the  term  of  six  years.  There 
seems  to  be  no  provision  for  re-recording  or  renewal. 

Discharge. 

No  provision. 


412  CONDITIONAL  SALES. 

Criminal  Liability  of  Vendee. 

It  is  a  crime  to  sell  or  otherwise  dispose  of  property  cov- 
ered by  a  conditional  contract  of  sale.  Where  the  value  of  such 
property  exceeds  $20.00,  punishment  for  such  unlawful  dis- 
posal is  a  fine  of  not  more  than  $500.00  or  imprisonment  for 
not  more  than  two  years,  or  both.  Where  the  value  of  the 
property  is  $20.00  or  less,  the  punishment  is  a  fine  of  not  more 
than  $100.00  or  imprisonment  for  not  more  than  thirty  days. 
Code  of  Laws,  Criminal  Code,  §  447.  State  v.  Haynes,  74  S.  C. 
450,  55  S.  E.  118. 


Loss,  Who  Must  Bear. 
No  cases  found. 

Fixtures. 

Where  property  delivered  under  conditional  contract  of 
sale  has  been  fastened  to  a  building  in  such  manner  that  same 
may  be  removed  without  material  injury  to  the  building  or  to 
itself,  the  courts  have  held  that  on  failure  of  the  contract  pay- 
ments the  vendor  is  entitled  to  possession.  Where  the  prop- 
erty has  been  so  attached  to  a  building  as  to  become  a  material 
part  thereof,  and  incapable  of  being  removed  without  great  in- 
jury to  the  building  or  to  itself,  it  cannot  be  taken  possession  of 
and  the  vendor's  remedy  is  by  an  action  in  equity  to  charge  the 
amount  unpaid  as  a  lien  upon  the  building.  Padgett  v.  Cleve- 
land, 33  S.  C.  339,  II  S.  E.  1069. 

Landlord's  Lien. 

The  statute  law  seems  to  be  explicit  upon  the  point  that 
a  landlord  shall  only  have  a  lien  by  distress  for  rent,  covering 
property  actually  owned  by  the  tenant,  and  that  upon  prop- 
erty held  by  such  tenant  under  conditional  sale  contract  he  can 
only  subject  same  to  his  lien  by  paying  the  balance  on  the  con- 
tract.   This  too,  whether  such  contract  be  filed  or  recorded  or 


SOUTH   CAROLINA.  4I3 

otherwise.  There  has  been  a  decision  however  that  an  unfiled 
or  unrecorded  contract  is  no  protection  to  the  vendor,  and  an- 
other that  it  is  valid.  It  is  always  advisable  to  file  or  record 
before  the  property  involved  is  delivered  to  vendee  when  no 
question  can  arise.  Code  of  Laws,  §§  3515,  3516.  Ex  parte 
Knobeloch,  26  S.  C.  331,  2  S.  E.  612;  Simpson  v.  McDonald, 
79  S.  C.  277,  60  S.  E.  674. 


Notes. 

The  giving  of  notes  under  conditional  sale  agreement  does 
not  ordinarily  operate  to  supersede  such  contract.  Care  should 
be  taken,  however,  that  not  too  great  a  portion  of  the  contract 
shall  be  included  in  the  notes,  or  that  additional  clauses  be 
inserted,  for  under  such  circumstances  it  might  be  necessary  to 
file  or  record  same,  and  the  notes  would  be  made  non-negoti- 
able. Straub  v.  Screven,  19  S.  C.  445  ;  Herring  &  Co.  v.  Can- 
non, 21  S.  C.  212. 


Election  of  Remedies. 

The  law  is  definitely  settled  in  this  state,  that  where  the 
vendor  under  conditional  contract  of  sale  sues  and  secures  a 
money  judgment,  he  cannot  thereafter  replevin  the  property, 
except  in  case  of  fraud,  even  though  such  judgment  be  not 
paid.  Standard  etc.  v.  Alexander,  68  S.  C.  506,  47  S.  E.  711; 
Rice  V.  Hampton,  91  S.  E.  5. 


Repossession  and  Refund. 

There  seems  to  be  no  requirement  in  this  state  for  refund- 
ing any  portion  of  the  purchase  price  when  the  property  is 
taken  back  upon  default.  Talbott  etc.  v.  Padgett,  30  S.  C.  167, 
8  S.  E.  845 ;  Singer  Mfg.  Co.  v.  Smith,  40  S.  C.  529,  19  S.  E.  132. 


414  CONDITIONAL  SALES. 

Railroad  Equipment. 

Conditional  sale  contracts,  or  leases,  or  mortgages  cover- 
ing locomotive  engines,  rolling  stock  or  other  railway  equip- 
ment must  be  in  writing  signed  by  vendee  or  lessee  or  bailee 
or  mortgagor,  and  in  order  to  be  valid  as  against  subsequent 
creditors  or  purchasers  for  value  and  without  notice  must  be 
recorded,  within  40  days  after  the  execution  and  delivery  of 
such  contract,  with  the  secretary  of  state.  A  later  record  will 
be  valid  as  to  the  same  parties  whose  claims  arise  after  such 
recording.  Each  engine,  car  and  other  railway  equipment 
shall  have  the  name  of  the  vendor  or  lessor  or  bailor  or  mort- 
gagor plainly  marked  on  each  side  thereof  followed  by  the 
word  "owner,"  "lessor,"  "bailor"  or  "mortgagor,"  as  the  case 
may  be. 

The  property  must  be  so  described  in  the  instrument  as  to 
correspond  with  the  name  so  marked  thereon.  Before  such  in- 
strument can  be  recorded  it  must  be  proven  by  one  of  two  sub- 
scribing witnesses. 

Upon  payment  in  full  same  shall  be  discharged  by  a  declar- 
ation on  the  margin  of  the  record,  or  a  satisfaction  in  writing 
duly  proven  by  a  subscribing  witness  shall  be  recorded.  Fail- 
ure to  so  satisfy  subjects  the  vendor,  lessor,  bailor,  mortgagee 
or  his  or  its  assigns  to  a  penalty  of  $500. 

Fees  for  recording  are  the  same  amounts  payable  to  a 
register  of  mesne  conveyances  for  like  services.  Code  of  Laws, 
Vol  I,  §§  705-707. 


SOUTH   CAROLINA.  415 


Forms. 


AFFIDAVIT  OF  SINGLE  SUBSCRIBING  WITNESS  TO 
INDIVIDUAL  SIGNATURE. 

State  of  South  Carolina,  ) 
County  of  Spartanburg.      ^ 

Personally  appeared  before  me  Andrew  J.  Stone  and  made 
oath  that  he  saw  the  within  named  James  T.  Reade  sign,  seal, 
and  as  his  act  and  deed,  deliver  the  attached  written  agreement, 
and  that  he  witnessed  the  execution  thereof,  and  subscribed 
his  name  as  witness  thereto. 

Andrew  J.  Stone. 

Sworn  to  and  subscribed  before  me  this 
1 2th  day  of  July,  191 7. 

Robert  G.  Wheeler, 

Notary  Public  in  and  for . 

\  notarial  ) 
]      seal.       \ 

AFFIDAVIT  BY  ONE  OF  TWO  SUBSCRIBING  WIT- 
NESSES TO  INDIVIDUAL  SIGNATURE. 

State  of  South  Carolina,  ) 

V  SS,  I 

County  OF  Spartanburg.     ^ 

Personally  appeared  before  me  Andrew  J.  Stone  and  made 
oath  that  he  saw  the  within  named  James  T.  Reade  sign,  seal 
and  as  his  act  and  deed  deliver  the  within  written  agreement 
for  the  uses  and  purposes  therein  mentioned  and  that  he  with 
Lewis  A.  Maynard  witnessed  the  due  execution  thereof. 

Andrew  J.  Stone. 

Sworn  to  and  subscribed  before  me 
this  I2th  day  of  July.  1917. 

Robert  G.  Wheeler, 

Notary  Public  in  and  for . 

(  notarial  I 

)        SEAL.         \ 


4l6  CONDITIONAL  SALES. 

AFFIDAVIT  BY  ONE  OF  TWO  SUBSCRIBING  WIT- 
NESSES TO  CORPORATION  SIGNATURE. 

State  of  South  Carolina,   ) 
County  of  Spartanburg.      ^ 

Personally  appeared  before  me  Andrew  J.  Stone  and  made 
oath  that  he  saw  George  M.  Fisher,  as  president,  sign,  affix 
the  corporate  seal  of  the  within  named  Acme  Pattern  Com- 
pany, and  as  the  act  and  deed  of  said  corporation  deliver  the 
within  written  agreement ;  and  that  he  wkh  Lewis  A.  Maynard 
witnessed  the  execution  thereof. 

Andrew  J.  Stone. 

Sworn  to  and  subscribed  before  me 
this  I2th  day  of  July,  1917. 

Robert  G.  Wheeler, 
Notary  Public  in  and  for . 


{  notarial  I 
/      seal.        \ 


Officers  Before  Whom  Affidavits  May  Be  Made. 


Within  the  State.  A  commissioner  appointed  by  the  court 
of  common  pleas,  a  notary  public,  a  justice  of  the  peace,  or  any 
other  officer  authorized  to  administer  an  oath. 

Without  the  State  hut  Within  the  United  States.  Any  com- 
missioner of  deeds  of  the  state  of  South  Carolina,  a  clerk  of 
any  court  of  record,  a  notary  public. 


SOUTH  DAKOTA. 


Legal  Status  of  Conditional  Sale  Contracts. 

Conditional  contracts  of  sale  are  provided  for  by  statute 
law  in  this  state.  Compiled  Laws,  §  1315.  Rosenbaum  v. 
Foss,  4  S.  D.  184,  156  N.  W.  114;  Webber  v.  Conklin,  20  S.  D. 
52,  104  N.  W.  675;  In  re:  Nelson,  191  Fed.  233. 

How  Executed. 

Conditional  contracts  of  sale  must  be  in  writing  signed  by 
the  vendee,  but  do  not  need  to  be  signed  by  the  vendor,  the  ac- 
ceptance of  such  a  contract  on  the  part  of  the  vendor  by  acting 
upon  it,  or  shipping  the  goods,  being  suflficient  to  make  a  bind- 
ing contract  between  the  parties  thereto.  There  is,  however, 
no  objection  to  the  contract  being  formally  signed  and  ac- 
cepted by  vendor. 

The  law  of  chattel  mortgages  provides,  that  in  such  in- 
strument above  the  signature  of  the  mortgagor  must  appear 
a  statement  that  a  copy  thereof  has  been  delivered  to  him.  If 
this  be  lacking  the  mortgage  is  void  and  it  cannot  be  filed  so  as 
to  protect  the  mortgagee.  There  has  been  no  court  decision 
upon  this  point,  and  it  is  the  judgment  of  prominent  local  at- 
torneys that  these  provisions,  not  being  incorporated  specific- 
ally into  the  statutes  governing  conditional  sale  contracts,  do 
not  apply  thereto.  (The  Author  concurs  wnth  this  view).  Com- 
piled Laws,  §§  13 1 5,  2085-86.  2090,  2092. 

Acknowledgment  of  Proof. 

Such  a  contract  is  valid  as  between  the  parties  thereto 
without  acknowledgment  or  proof,  or  filing  or  recording,  but 
in  order  to  make  it  valid  as  to  third  persons  without  notice  the 
contract  must  be  filed. 


417 


4l8  CONDITIONAL  SALES. 

Recording  or  Filing. 

In  order  to  hold  title  as  against  third  persons  without  no- 
tice, the  original  contract  duly  signed  by  vendee  must  be  filed 
with  the  register  of  deeds  in  the  county  where  the  vendee  re- 
sides. 

The  law  provides  that  a  chattel  mortgage  must  be  signed 
by  two  subscribing  witnesses  before  it  can  be  filed,  but  does 
not  require  that  such  witnesses  prove  the  contract  by  their 
oaths.  The  law  as  to  conditional  sales  simply  states  that  such 
contracts  must  be  in  writing  and  be  filed  with  the  register  of 
deeds  in  the  county  where  the  vendee  resides,  but  makes  no 
provision  as  to  the  manner  in  which  they  shall  be  acknowl- 
edged or  proven.  A  court  decision  has  been  made  that  a  con- 
ditional contract  of  sale  is  in  eflfect  a  chattel  mortgage.  This 
has  given  rise  to  much  confusion,  as  to  whether  or  not  it  is 
necessary,  that  such  a  contract  shall  be  signed  by  two  sub- 
scribing witnesses  before  it  can  be  filed.  Many  attorneys  in 
this  state  declare  that  no  subscribing  witnesses  are  necessary, 
where  the  contract  is  purely  and  simply  one  of  conditional 
sale,  by  which  title  only  is  retained  in  the  vendor  until  full  pay- 
ment is  made.  On  the  other  hand,  so  many  contracts  contain 
provisions  which  make  them  something  more  than  a  mere  con- 
ditional contract  of  sale,  that  the  only  safe  and  sure  rule  to  be 
followed  in  the  execution  of  all  such  contracts  is  that  they  shall 
be  signed  by  two  subscribing  witnesses.  Then  they  are  en- 
titled to  be  filed  and  no  question  can  be  raised  as  to  their  legal- 
ity. One  of  the  subscribing  witnesses  may  be  the  salesman 
for  the  vendor,  provided  he  does  not  also  execute  the  contract 
for  and  on  behalf  of  the  vendor.  Compiled  Laws,  §§  1315, 
2085-86,  2090,  2092.  Pringle  v.  Canfield,  19  S.  D.  506,  104  N. 
W.  223. 

Recording  Fee. 

The  fee  for  filing  a  chattel  mortgage  is  ten  cents,  but 
there  is  no  express  provision  fixing  the  fee  for  filing  a  con- 


SOUTH  DAKOTA.  419 

ditional  sale  contract.     Many  officials  insist  upon  receiving  25 
cents.     Compiled  Laws,  Political  Code,  Page  430,  §  1827. 

Re-Recording  or  Renewal. 
No  provision. 

Discharge. 

No  provision. 

Criminal  Liability  of  Vendee. 

No  provision. 

Loss,  Who  Must  Bear. 
No  cases  found. 

Fixtures. 

There  has  been  no  determination  in  this  state  as  to  the 
rights  of  a  conditional  vendor  where  the  property  in  question 
has  been  fastened  to  a  building. 

Landlord's  Lien. 

A  landlord  has  no  lien  for  rent  against  personal  property 
placed  in  his  building  or  upon  his  premises. 

Notes. 

No  cases  found. 

Election  of  Remedies. 

Where  two  or  more  remedies  exist  in  favor  of  a  vendor 
under  conditional  sale  agreement  and  one  of  them  is  availed  of, 
the  others  are  deemed  to  be  waived. 


420  CONDITIONAL  SALES. 

The  detriment  caused  by  the  breach  of  a  buyer's  agree- 
ment to  accept  and  pay  for  personal  property,  the  title  to  which 
is  not  vested  in  him  is  deemed  to  be : 

1.  If  the  property  has  been  resold  pursuant  to  Section 
2151  the  excess  if  any  of  the  amount  due  from  the  buyer  under 
the  contract  over  the  net  proceeds  of  the  resale ;  or 

2.  If  the  property  has  not  been  resold  in  the  manner  pre- 
scribed by  Section  2151  the  excess  if  any  of  the  amount  due 
from  the  buyer  under  the  contract,  over  the  value  to  the  seller, 
together  with  the  excess  if  any  of  the  expenses  properly  in- 
curred in  carrying  the  property  to  market,  over  those  which 
would  have  been  incurred  for  the  carriage  thereof  if  the  buyer 
had  accepted  it.    Compiled  Laws,  §  2303. 

One  who  sells  personal  property  has  a  special  lien  thereon, 
dependent  on  possession  for  its  price,  if  it  is  in  his  possession 
when  the  price  becomes  payable,  and  may  enforce  his  lien  in 
like  manner,  as  if  the  property  was  pledged  to  him  for  the 
price.  Compiled  Laws,  §  2151.  Dowagiac  Mfg.  Co.  v.  White 
Rock  Co.,  18  S.  D.  105,  99  N.  W.  854;  International  Harvester 
Co.  v.  Pott  et  al,  32  S.  D.  82,  142  N.  W.  652;  Sioux  Falls  Adj. 
Co.  V.  Aikens,  32  S.  D.  154,  142  N.  W.  651. 

Repossession  and  Refund. 
No  cases  found. 


Railroad  Equipment. 

Railroad  equipment  and  rolling  stock  may  be  delivered  un- 
der conditional  sale  contract,  or  lease  with  option  to  purchase, 
but  the  term  may  not  be  longer  than  ten  years,  and  in  order 
that  such  instrument  shall  be  valid  as  to  subsequent  purchasers 
in  good  faith  and  creditors,  same  must  be  in  writing  duly 
acknowledged,  and  the  original  thereof  must  be  recorded  with 
the  secretary  of  state,  and  with  the  register  of  deeds,  in  the 
county  where  is  located  the  principal  place  of  business  of  such 


SOUTH  DAKOTA.  421 

vendee  or  lessee.  (This  necessitates  duplicate  originals).  Each 
locomotive  or  car  so  sold  or  leased  must  have  the  name  of  the 
vendor,  lessor  or  assignee  of  the  vendor  or  lessor  marked 
thereon  follow^ed  by  the  word  "owner,"  or  "lessor"  as  the  case 
may  be. 

Fees  to  secretary  of  state  for  recording  25  cents  per  folio. 

Fees  to  register  of  deeds  50  cents  for  the  first  400  words 
and  10  cents  for  each  additional  100  words.  Compiled  Laws, 
Vol.  II,  §§  490,  491.  Compiled  Laws,  Vol.  I,  Political  Code, 
Page  430,  §  1827.  Compiled  Laws,  Vol.  I,  Political  Code,  Page 
24,  §  I. 


422  CONDITIONAL   SALES    ( SOUTH    DAKOTA). 


TENNESSEE. 


Legal  Status  of  Conditional  Sale  Contracts. 

Conditional  contracts  of  sale  are  provided  for  by  statute 
law  in  this  state.  There  are  special  rules  for  railroad  equip- 
ment and  fencing  materials.  (See  Railroad  Equipment).  (See 
Fencing  Materials).  Shannon's  Code,  §  3666  as  Amended  by 
Public  Laws  191 1,  Chap.  8,  §§  3667-70,  Laws  of  1899,  Chap.  15. 
Houston  V.  Dyche,  i  Meigs  76 ;  Gambling  v.  Read,  i  Meigs  281  ; 
Burson  v.  Dougherty,  11  Humphrey  50;  Burke  v.  Harrison,  5 
Sneed  237;  Price  v.  Jones,  3  Head  84;  McCombs  v.  Guild 
Church  Co.,  9  Lea.  81  ;  Wilder  &  Co.  v.  Wilson  &  One,  16  Lea. 
548;  Holmark  v.  Molin,  5  Cald.  482;  Mayer  v.  Catron,  48  S. 
W.  255  (no  Tenn.  Cit.)  ;  Light  &  Co.  v.  Insurance  Co.,  105 
Tenn.  480,  58  S.  W.  851 ;  Owenby  v.  Swann.  59  S.  W.  378,  (no 
Tenn.  Cit.);  Blair  v.  Johnson  &  Sons,  iii  Tenn.  iii,  jd  S. 
W.  912;  Star  Clothing  Co.  v.  Nordemann  et  al,  118  Tenn.  384, 
100  S.  W.  93;  Nance  v.  Houck  Piano  Co.,  128  Tenn.  i,  155  S, 
W.  T172;  Carolina  etc.  Ry.  Co.  v.  Unaka  Springs  Lbr.  Co.,  130 
Tenn.  354,  170  S.  W.  591 ;  Shaw  v.  Webb,  131  Tenn.  173,  174 
S.  W.  273;  Blackwood  etc.  Co.  v.  Auto  Storage  Co.,  133  Tenn. 
515,  182  S.  W.  576;  Parker-Harris  Co.  v.  Tate  etc.,  135  Tenn. 
509,  188  S.  W.  54;  In  re:  Leech  Woolen  Mills,  129  Fed.  922; 
Reversed  in  134  Fed.  221 ;  Coweta  Fertilizer  Co.  v.  Brown,  163 
Fed.  162;  Mitchell  Wagon  Co.  v.  Poole  et  al,  235  Fed.  817. 


How  Executed. 

They  must  be  in  writing  signed  by  the  vendee  but  do  not 
need  to  be  signed  by  the  vendor,  the  acceptance  of  such  a  con- 
tract on  the  part  of  the  vendor  by  acting  upon  it  or  shipping 

423 


424  CONDITIONAL  SALES. 

the  goods  being  sufficient  to  make  a  binding  contract  as  be- 
tween the  parties  thereto.  There  is,  however,  no  objection  to 
the  contract  being  formally  signed  and  accepted  by  the  vendor. 
Laws  of  1899,  Chap.  15.  Singer  Sewing  Machine  Co.  v.  Cole, 
4  Lea.  439;  Meagher  v.  Hollenberg,  9  Lea.  392. 

Acknowledgment  or  Proof. 

Such  a  contract  needs  no  subscribing  witness,  nor  acknowl- 
edgment or  proof  by  any  one. 

Recording  or  Filing. 

There  is  no  provision  for  recording  or  filing  such  an  in- 
strument so  as  to  make  it  notice,  and  no  necessity  exists  for 
such  action  as  the  contract  is  valid  with  reference  to  all  third 
persons,  except  where  the  property  becomes  a  permanent  fix- 
ture upon  real  estate. 

Recording  Fee. 
No  provision. 

Re-Recording  or  Renewal. 

No  provision. 

Discharge. 

No  provision. 

Criminal  Liability  of  Vendee. 

It  is  a  crime,  punishable  by  imprisonment  in  the  county 
jail  for  not  more  than  six  months  or  by  a  fine  of  not  more  than 
$50.00  or  both,  to  sell,  give  away,  or  otherwise  conceal  or  dis- 
pose of  property  held  under  conditional  contract  of  sale,  unless 
with  the  written  consent  of  the  vendor.     If,  however,  in  any 


TENNESSEE.  425 

such  case  the  full  balance  due  on  such  property  and  costs  be 
paid  before  the  offender  is  arraigned  for  trial,  no  punishment 
shall  be  inflicted. 

It  shall  be  unlawful  to  remove  from  the  state,  conditionally 
sold  property,  before  it  is  paid  for,  and  without  the  written 
consent  of  \endor.  A  conviction  for  such  an  offense  is  punish- 
able as  a  felony  by  imprisonment  for  not  less  than  one  year,  or 
more  than  five  years,  and  a  fine  of  not  less  than  $250.00  or  more 
than  $500.00.  Laws  of  1899,  Chap.  12.  Laws  of  1909,  Chap. 
557     Pappas  V.  State,  135  Tenn.  499,  188  S.  W.  52. 

Loss,  Who  Must  Bear. 

Where  property  has  been  delivered  under  conditional  sale 
contract  and  is  injured  or  destroyed  before  payment  in  full,  the 
loss  falls  upon  vendee.  Marion  Mfg.  Co.  v.  Buchanan,  118 
Tenn.  238,  99  S.  W.  984;  Planters'  Bank  v.  Van  Dyck,  4  Heisk, 
617. 

Fixtures. 

Where  personal  property  delivered  under  conditional  sale 
contract  has  been  fastened  to  a  building  in  such  a  manner  that 
it  may  be  removed  without  material  damage  to  the  building 
or  to  the  property  or  to  both ;  then  same  may  be  taken  away 
upon  default.  On  the  contrary  if  such  property  becomes  firmly 
attached  to  a  building,  and  is  in  a  legal  sense  an  integral  part 
thereof  then  no  removal  could  be  had ;  especially  if  the  rights 
of  third  parties  had  intervened.  The  vendor  might  have  under 
such  circumstances  an  equitable  right  to  enforce  the  balance 
unpaid  as  a  lien  against  the  building.  Union  Bank  &  Tr.  Co.  v. 
Wolf  Co.  et  al,  114  Tenn.  255,  86  S.  W.  310;  Southern  Tee  & 
Coal  Co.  V.  Alley.  127  Tenn.  173,  154  S.  W.  536. 

Landlord's  Lien. 

There  is  no  provision  of  law  giving  landlords  a  lien  for 
rent  on  personal  property  found  on  their  premises. 


426  CONDITIONAL  SALES. 

Notes. 

Notes  may  be  given  following  a  conditional  sale  contract 
and  they  may  be  transferred  and  extended  without  afifecting 
the  security.  McDonald  Auto  Co.  v.  Bicknell,  129  Tenn.  493, 
167  S.  W.  108. 

Election  of  Remedies. 

A  conditional  sale  vendor  is  not  confined  to  the  statutory 
remedy  of  taking  possession  upon  default,  advertising  the  prop- 
erty and  selling  same  at  public  auction. 

An  action  in  equity  may  be  brought  and  a  foreclosure  had. 
The  effect  of  securing  a  money  judgment,  and  thereafter  at- 
tempting to  regain  the  property  has  not  been  determined. 
Southern  Ice  &  Coal  Co.  v.  Alley,  127  Tenn.  173,  154  S.  W.  536. 

Repossession  and  Refund. 

Where  property  held  under  conditional  sale  contract  is 
taken  possession  of  from  vendee  upon  default,  the  vendor  shall 
give  written  or  printed  notice  of  a  public  sale  thereof,  the  date 
of  such  sale  to  be  at  least  ten  days  after  the  giving  of  such  no- 
tice. The  notice  in  question  shall  be  posted  (or  fastened  up) 
in  at  least  three  public  places  within  the  county  where  the 
property  is  to  be  sold ;  one  to  be  in  the  district  where  the  prop- 
erty is  to  be  sold,  and  one  at  the  court  house  door  in  the  county 
in  which  the  property  is  to  be  sold,  and  the  other  at  any  pub- 
lic place  in  said  county.  The  giving  of  such  notice  must  begin 
within  ten  days  after  vendor  secures  possession.  From  the  pro- 
ceeds of  such  sale  vendor  may  deduct  his  debt  and  the  expenses 
of  sale,  the  balance  to  be  paid,  over  to  vendee.  In  case  the 
amount  realized  from  such  sale  is  not  sufficient  to  pay  the  bal- 
ance owing  and  such  expenses,  then  vendor  still  has  an  ordin- 
ary debt  for  this  amount.  Upon  failure  of  vendor  to  pay  ven- 
dee any  surplus  as  above  provided  same  may  be  collected  by 
action.  The  original  vendor  and  vendee  may  at  any  time  by 
agreement  waive  the  sale  in  question.     If  no  waiver  is  entered 


TENNESSEE.  427 

into,  and  no  sale  as  herein  provided  is  had,  the  vendee  may  re- 
cover from  vendor  all  the  payments  made  under  contract. 
Shannon's  Code,  §  3666,  as  Amended  by  Public  Laws  191 1, 
Chap.  8,  §§  3667-70.  Cowan  v.  Singer  Mfg.  Co.,  92  Tenn.  376, 
21  S.  W.  663 ;  Liebermann  v.  Puckett,  94  Tenn.  273,  29  S.  W. 
6;  Milburn  Mfg.  Co.  v.  Wayland,  43  S.  W.  129,  (no  Tenn. 
Cit.)  ;  Tschopick  v.  Lippincott  et  al,  48  S.  W.  128,  (no  Tenn. 
Cit.)  ;  Whitelaw  Fur.  Co.  v.  Boon,  102  Tenn.  719,  52  S.  W.  155 ; 
Massillon  etc.  Engine  Co.  v.  Wilkes,  82  S.  W.  316,  (no  Tenn. 
Cit.). 

Railroad  Equipment. 

Railroad  equipment  or  rolling  stock  may  be  delivered  un- 
der conditional  sale  contract  or  lease  with  option  to  purchase. 
Such  contract  shall  be  in  writing  signed  by  all  parties  thereto, 
and  the  term  cannot  exceed  six  years.  In  order  that  same  shall 
be- valid  as  against  purchasers  from,  or  creditors  of  vendee  or 
lessee  the  original  contract  must  be  acknowledged  by  such  ven- 
dee or  lessee,  as  deeds  of  real  estate  are  requited  to  be  acknowl- 
edged ;  and  same  must  be  recorded  with  the  secretary  of  state, 
and  with  the  county  register  of  the  county  where  vendee  or 
lessee  has  its  principal  place  of  business  within  the  state.  (This 
necessitates  duplicate  originals).  Each  locomotive  engine  or 
car  so  sold  or  leased  shall  have  the  name  of  the  vendor  or  les- 
sor plainly  placed  or  marked  on  each  side  thereof,  or  be  other- 
wise marked  so  as  to  indicate  the  ownership. 

Fees  to  secretary  of  state  ten  cents  per  folio  (100  words) 
for  recording. 

Fees  to  county  register  for  the  first  300  words  or  less  75 
cents,  for  each  additional  100  words,  10  cents.  Shannon's  Code, 
§§  3587-89,  6369,  6427. 

Fencing  Material. 

Section  i.  That  hereafter  when  any  fencing  wire,  fencing 
posts,  or  other  fencing  material  is  sold  upon  condition  that  title 


428  •  CONDITIONAL  SALES. 

thereto  is  to  remain  in  the  seller  until  that  part  of  the  consider- 
ation remaining  unpaid,  is  paid,  the  use  thereafter  of  such 
fencing  wire,  fencing  posts  or  other  fencing  materials  in  the 
erection  or  repairing  of  fences  on  real  estate  shall  not,  by  such 
use,  thereby  become  a  fixture  and  shall  continue  its  character 
as  personal  property  until  the  unpaid  consideration  therefor  is 
fully  paid,  or  sale  is  made  under  this  Act ;  but  no  such  reten- 
tion of  title  shall  be  legal  or  valid  unless  evidenced  by  note  or 
other  written  contract  or  memorandum,  executed  at  the  time  of 
the  sale;  Provided  this  act  shall  not  apply  to  counties  having 
a  population  of  not  more  than  25,910  and  not  less  than  25,907; 
also  to  counties  having  a  population  of  not  more  than  22,669, 
and  not  less  than  22,665  according  to  the  Federal  census  of 
1910,  or  any  subsequent  Federal  census. 

Section  2.  That  if  default  be  made  by  the  purchaser,  in 
case  of  sale  provided  for  in  Section  i  of  this  Act,  the  seller,  his 
agent  or  assignee  may,  at  any  time  after  such  default,  regain 
possession  of  the  property  sold  by  action  of  replevin  before 
any  court  of  competent  jurisdiction,  or  any  justice  of  the  peace 
having  jurisdiction  of  the  amount,  and  shall  within  ten  days 
after  regaining  possession,  advertise  the  property  for  sale,  for 
cash  to  the  highest  bidder,  by  written  or  printed  notices  posted 
in  as  many  as  three  public  places  in  the  county  where  the  prop- 
erty is  to  be  sold,  one  of  which  places  to  be  in  the  district  in 
which  the  property  is  to  be  sold,  one  at  the  court  house  door 
in  the  county  in  which  the  property  is  to  be  sold,  and  the  other 
at  any  public  place  in  said  county  (said  notices  to  contain  a  de- 
scription of  the  property  to  be  sold,  and  the  time,  terms,  and 
place  of  sale)  and  unless  the  debt  or  claim  of  the  seller,  or  his 
assignee,  is  satisfied  before  the  day  of  sale,  then  it  shall  be  the 
duty  of  the  seller,  his  agent  or  assignee  to  (at  the  time  and  place 
as  stated  in  the  notices)  ;  offer  for  sale  and  sell  said  property,  as 
above  provided,  and  with  the  proceeds  of  sale  satisfy  the  debt 
or  claim  arising  from  the  conditional  sale  and  the  expense  of 
advertisement  and  sale,  and  the  remainder,  if  any,  of  the  pro- 
ceeds of  sale  shall  be  paid  to  the  purchaser,  or  to  his  assignee; 
provided  the  seller,  his  agent,  or  assignee  and  the  purchaser 


TENNESSEE.  429 

may,  at  any  time  prior  to  sale,  by  agreement,  waive  the  sale 
provided  for  in  this  section. 

Section  3.  That  the  seller,  his  agent,  or  assignee,  men- 
tioned in  Section  2  of  this  Act,  may  become  bidder  or  bidders 
and  purchaser  or  purchasers  at  the  sale  provided  for  therein. 

Section  4.  That  should  the  property,  at  the  sale  provided 
for  in  said  Section  2  of  this  Act,  fail  to  realize  a  sum  sufficient 
to  satisfy  the  debt  or  claim  and  expenses,  the  balance  still  re- 
maining due  shall  be  and  continue  a  valid  indebtedness  against 
the  original  purchaser. 

Section  5.  That  should  the  seller,  or  his  assignee,  having 
regained  possession  of  said  property,  fail  to  advertise  and  sell 
the  same  as  provided  by  Section  2  of  this  Act  (unless  said  sale 
is  waived  as  provided  in  said  Section  2),  the  original  purchaser 
may  recover  from  the  original  seller  that  part  of  the  considera- 
tion paid  in  an  action,  before  any  justice  of  the  peace  or  court 
having  jurisdiction  of  the  amount. 

Section  6.  That  should  the  property,  sold  under  this  Act, 
realize  an  amount  more  than  sufficient  to  satisfy  the  claim  of 
the  original  seller  and  the  expenses  of  advertisement  and  sale, 
and  the  balance  be  not  paid  to  the  original  purchaser  or  his  as- 
signee, as  above  provided  in  Section  2  of  this  Act,  then  the 
original  purchaser  may  have  and  recover  said  balance  from  said 
original  seller  by  action  before  any  justice  of  the  peace  or  court 
having  jurisdiction  of  the  amount.     Laws  of  1915,  Chap.  81. 


430  CONDITIONAL   SALES    (tENNESSEE). 


TEXAS. 


Legal  Status  of  Conditional  Sale  Contracts. 

Conditional  contracts  of  sale  are  provided  for  by  statute 
law  in  this  state,  and  are  governed  by  the  rules  regulating  chat- 
tel mortgages.  Vernon's  Sayles'  Civil  Statutes,  Articles  5654- 
5656,  5661,  as  amended  by  Laws  1917,  Chap.  153  (See  Fix- 
tures). Living  Pub.  Co.  v.  Johnson  et  al,  68  Tex.  273,  4  S.  W. 
532;  Merchants  etc.  Bank  v.  Thomas  &  Son,  69  Tex.  237,  6  S. 
W.  565 ;  Parlin  &  One  v.  Harrell,  8  Tex.  Civ.  App.  368,  27  S.  W. 
1084;  Parlin  &  One  v.  Moline  Plow  Co.,  27  S.  W.  1087,  (no 
State  Cit.)  ;  Avery  et  al  v.  Mansur  etc.  et  al,  2i7  S.  W.  466,  (Tex. 
Civ.  App.),  (no  State  Cit.)  ;  Bowen  et  al  v.  Lansing  Wagon 
Works,  91  Tex.  385,  43  S.  W.  872 ;  Mansur  etc.  v.  Beeman  etc. 
et  al,  45  S.  W.  729,  (Tex.  Civ.  App.),  (no  State  Cit.)  ;  Mechanic's 
Bank  etc.  v.  Gullett  Gin  Co.,  48  S.  W.  627,  (Tex.  Civ.  App.),  (no 
State  Cit.)  ;  Parlin  &  One  v.  Davis,  74  S.  W.  951,  (Tex.  Civ. 
App.),  (no  State  Cit.)  ;  Sanger  v.  Jessie  French  Piano  Co.,  75  S. 
W.  39,  (Tex.  Civ.  App.),  (no  State  Cit.)  ;  Wing  &  Son  v.  Padgett, 
160  S.  W.  422,  (Tex.  Civ.  App.)  ;  In  re :  Avery  &  Sons  Plow 
Co.,  202  Fed.  996;  In  re:  Studebaker  Bros.,  202  Fed.  1000;  In 
re:  Raney,  202  Fed.  1000;  In  re:  Texas  Harvester  Co..  202  Fed. 
1002;  In  re:  Texas  Moline  Plow  Co.,  202  Fed.  1003.  See  also: 
Hall  V.  Keating  Implement  Co.,  33  Tex.  Civ.  App.  526,  yy  S. 
W.  1054. 

How  Executed. 

They  must  be  in  writing  signed  by  the  vendee  but  do  not 
need  to  be  signed  by  the  vendor,  the  acceptance  of  such  a  con- 
tract on  the  part  of  the  vendor  by  acting  upon  it  or  shipping  the 


431 


432  CONDITIONAL  SALES. 

goods  being  sufficient  to  make  a  binding  contract  as  between 
the  parties  thereto.  There  is,  however,  no  objection  to  the  con- 
tract being  formally  signed  and  accepted  by  the  vendor.  Knit- 
tel  V.  Gushing,  57  Tex.  354;  Abacock  v.  St.  Louis  Foundry,  59 
Tex.  514;  Farmers  Natl.  Bk.  v.  Henderson,  29  S.  W.  562,  (Tex. 
Civ.  App.),  (no  State  Cit.)  ;  Harrold  v.  Barwise,  10  Tex.  Civ. 
App.  138,  30  S.  W.  498;  Eason  v.  DeLong  et  al,  38  Tex.  Civ. 
App.  531,86  s.  W.  347. 

Acknowledgment  or  Proof. 

Property  not  attached  to  real  estate. 

Such  a  contract  is  valid  as  between  the  parties  thereto 
without  acknowledgment  or  proof,  or  filing  or  recording,  but 
in  order  to  make  it  valid  as  against  bona  fide  purchasers  from 
and  lien  creditors  of  vendee  there  must  be  a  filing.  It  is  not 
necessary  that  the  original  instrument  be  acknowledged  by  the 
vendee  or  vendor,  nor  that  it  be  signed  or  proven  by  a  subscrib- 
ing witness  in  order  to  be  so  filed.     (See  Fixtures). 

Recording  or  Filing. 

Property  not  attached  to  real  estate. 

It  is  not  necessary  to  record  conditional  contracts  of  sale 
in  this  state,  but  in  order  to  hold  title  as  against  bona  fide  pur- 
chasers from  and  lien  creditors  of  the  vendee  there  must  be  a 
filing.  The  law  provides  that  such  filing  must  be  made  forth- 
with, and  this  means  with  reasonable  diligence  after  the  con- 
tract becomes  binding  upon  the  parties,  considering  the  dis- 
tance it  must  be  sent  and  other  features.  If  the  vendee  be  a 
resident  of  the  state  the  proper  filing  officer  is  the  county  clerk 
of  the  county  where  he  resides ;  but  if  he  is  not  such  resident 
then  with  the  like  officer  of  the  county  where  the  property  shall 
be  situated. 

Where  the  original  contract  is  sent  for  filing  it  is  not 
necessary  that  it  should  have  been  acknowledged  by  the  ven- 


TEXAS.  433 

dee  or  vendor  not  that  it  be  signed  or  proven  by  a  subscribing 
witness.  If,  however,  a  copy  is  sent  to  be  filed  the  original 
must  accompany  same  and  must  have  been  signed  by  two  sub- 
scribing witnesses  to  vendee's  signature,  or  have  been  acknowl- 
edged by  vendee  in  person.  Detail  is  therefore  avoided  by  send- 
ing the  original  for  filing.  Vernon's  Sayles'  Civil  Statutes,  Ar- 
ticles 5654-5656,  5661,  as  amended  by  Laws  1917,  Chap.  153. 
Griffith  &  One  v.  Morrison  &  One,  58  Tex.  46;  Hall  &  Brown 
Machine  Co.  v.  Brown,  82  Tex.  469,  17  S.  W.  715;  Wing  & 
Son  V.  Padgett,  160  S.  W.  422;  Baker  v.  Smelser,  88  Tex.  26,  29 
S.  W.  377;  Cameron  Ice  Co.  v.  Wallace,  21  Tex.  Civ.  App.  141, 
50  S.  W.  628;  Garretson  v.  De  Poyster  et  al,  16  S.  W.  106,  (Tex. 
Civ.  App.),  (no  State  Cit.).     (See  Fixtures). 


Recording  Fee. 

The  fee  for  filing  a  conditional  sale  contract  is  25  cents. 
Vernon's  Sayles'  Civil  Statutes,  Art.  3860. 


Re-Recording  or  Renewal. 

Such  a  contract  is  valid  for  the  term  of  six  years.  There  is 
a  provision  for  renewal  after  that  time,  but  for  what  additional 
period  is  not  stated.  Such  renewal  is  effected  by  the  owner  or 
holder  of  such  contract,  his  agent  or  attorney  filing  within  three 
months  before  the  end  of  such  six  years,  with  the  county  clerk 
where  such  contract  was  filed,  an  affidavit  in  writing  stating 
that  such  debt  has  not  been  paid,  and  the  amount  still  due 
thereon.  Fee  for  renewal  25  cents.  Vernon's  Sayles'  Civil 
Statutes,  Articles  3860,  5662. 

Discharge. 

The  law  requires  that  a  chattel  mortgage  shall  be  released 
after  payment  in  full,  but  there  is  no  express  penalty  for  failure 
to  make  such  a  discharge.  This  law  undoubtedly  applies  to 
conditional  contracts  of  sale  as  they  are  held  to  be  chattel  mort- 


434  CONDITIONAL  SALES. 

gages.  Upon  request  of  any  proper  party,  therefore,  a  satisfac- 
tion should  be  entered  as  otherwise  any  person  injured  could 
undoubtedly  collect  his  actual  damages. 

The  fee  for  discharging  such  a  contract  is  25  cents.    Ver- 
non's Sayles'  Civil  Statutes,  Articles  3860,  5656,  5659. 


Criminal  Liability  of  Vendee. 

It  is  a  crime,  if  done  with  intent  to  defraud,  to  remove  from 
the  state,  or  to  sell  or  dispose  of  property  held  under  conditional 
sale  contract  punishable  by  imprisonment  in  the  penitentiary 
for  not  less  than  two  years,  and  not  more  than  five  years.  Where 
the  person  making  such  instrument  shall  remove  the  property 
covered  thereby  from  the  county  where  situated,  or  otherwise 
sell  or  dispose  of  same  without  the  written  consent  of  the  ven- 
dor, then  such  vendor  shall  be  entitled  to  possession  of  the  said 
property  and  to  have  same  sold  for  the  payment  of  his  debt, 
whether  same  has  become  due  or  not.  Vernon's  Criminal 
Statutes,  Article  1430.  Vernon's  Sayles'  Civil  Statutes,  Article 
5660. 

Loss.  Who  Must  Bear. 
No  cases  found. 

Fixtures. 

When  any  machinery  or  other  manufactured  article  is  sus- 
ceptable  of  being  attached  to  the  realty  in  such  a  way  as  to  be- 
come a  fixture  thereto,  and  is  located  upon  real  estate  in  such 
manner  as  the  same  may  be  deemed  a  fixture  thereto,  and  at 
the  time  of  its  location  upon  such  real  estate  there  is  a  lien  or 
mortgage  evidenced  by  written  instrument,  or  any  instrument, 
reserving  title  in  such  machinery  or  other  manufactured  ar- 
ticle to  secure  an  indebtedness  thereon,  executed  by  the  pur- 
chaser or  owner  of  such  machinery  or  other  manufactured  ar- 
ticle at  the  time  of  its  location  on  such  real  estate,  and  the  in- 


TEXAS.  435 

strument  evidencing-  said  lien,  mortgage  or  reservation  of  title 
contains  a  description  of  said  machinery  or  other  manufac- 
tured article,  as  well  as  the  real  estate  upon  which  it  is  to  be 
located  or  situated,  reasonably  sufficient  to  identify  said  real 
estate,  and  such  instrument  is  registered  under  the  provisions 
of  this  act,  then  the  registration  of  such  instrument  evidencing 
said  lien,  mortgage  or  reservation  of  title  as  provided  for  by 
this  act,  shall  be  notice  to  all  persons  thereafter  dealing  with  or 
acquiring  any  right  or  interest  in  said  machinery,  or  other 
manufactured  article,  or  the  realty  upon  which  the  same  is  lo- 
cated or  other  improvements  or  property  situated  on  said  real 
estate,  of  all  of  the  rights  of  the  owners  or  holders  of  the  in- 
debtedness secured  by  said  instrument  the  same  as  if  recorded 
at  length  in  the  deed  records  or  records  of  mortgages  upon 
realty  of  the  county  where  the  real  estate  is  situated,  and  such 
lien,  mortgage  or  reservation  of  title  upon  or  to  such  machinery 
or  other  manufactured  article  shall  be  as  to  such  machinery  or 
other  manufactured  article  superior  to  any  lien  or  rights  exist- 
ing in  any  one  to  said  real  estate  or  other  improvements  or 
other  property  located  and  situated  thereon  existing  at  the  time 
of  the  location  of  said  machinery  or  other  manufactured  article 
thereon,  but  nothing  herein  contained  shall  be  held  to  give  the 
holder  of  such  lien,  mortgage  or  reservation  of  title  any  right 
or  claim  upon  the  real  estate  save  and  except  the  right  to  estab- 
lish and  foreclose  his  lien,  mortgage  or  reservation  of  title 
upon  such  machinery  or  other  manufactured  article,  and  to  en- 
force his  rights  thereto  under  the  instrument  evidencing  his 
lien,  mortgage  or  reservation  of  title,  as  in  other  cases  of  liens 
on  personal  property  hereunder. 

Also  that  all  such  instruments  shall  be  endorsed  on  the 
back  thereof,  to  wit:  "Liens  on  machinery  situated  on  realty," 
and  shall  be  registered  in  the  county  where  the  real  estate  is  lo- 
cated in  the  same  manner  as  other  chattel  mortgages  except 
that  there  shall  be  kept,  indexed  and  recorded,  as  now  herein 
provided  for  chattel  mortgages,  a  separate  book  to  be  endorsed 
"Chattel  Mortgage  records  on  realty."  The  record  thereof  shall 
in  addition  to  the  other  requirements  of  this  act  contain  a  brief 


436  CONDITIONAL  SALES. 

description  of  said  real  estate  to  which  said  fixtures  are  to  be 
attached.  Vernon's  Sayles'  Civil  Statutes,  Article  5661  as 
amended  by  Laws  1917,  Chapter  153. 


Landlord's  Lien. 

A  landlord's  lien  for  rent  does  not  attach  to  goods,  wares 
and  merchandise  of  a  merchant,  trader  or  mechanic  sold  and 
delivered  to  him  (the  tenant)  in  the  regular  course  of  business. 
A  distress  for  rent  in  the  ordinary  sense  would  undoubtedly 
not  lie  against  conditionally  sold  property  whether  the  con- 
tract be  filed  or  otherwise ;  but  the  landlord  whose  rent  accrues 
after  such  property  is  moved  upon  his  premises,  is  a  creditor 
of  vendee,  and  may  attach  same  for  such  debt,  provided  the 
contract  of  conditional  sale  shall  not  have  been  filed  before  the 
rent  accrues.  It  is  always  advisable  to  file  such  contract  forth- 
with and  before  vendee  gets  possession  when  no  question  can 
arise.  Vernon's  Sayles'  Civil  Statutes,  Articles  5475,  5491.  Key 
v.  Brown,  67  Tex.  300,  3  S.  W.  443 ;  Rogers  v.  Griggs,  29  S  .W. 
654,  (Tex.  Civ.  App.),  (no  State  Cit.)  ;  Brady  v.  Nagle  et  al,  29 
S.  W.  943,  (Tex.  Civ.  App.),  (no  State  Cit.). 


Notes. 

The  giving  of  notes  under  conditional  sale  contract  does 
not  ordinarily  afifect  the  security,  but  not  ,to  great  a  part  of  the 
contract  agreement  should  be  included  in  the  notes,  and  addi- 
tional provisions  should  not  be  found  therein  or  it  may  become 
necessary  to  file  same.  The  sale  of  such  notes  with  a  transfer 
or  assignment  of  the  contract  to  the  same  party  has  the  effect 
to  vest  title  to  the  property  in  question  in  vendee.  Merchants 
etc.  Bank  v.  Thomas  &  Son^  69  Tex.  237,  6  S.  W.  565 ;  Parlin 
&  Orendorff  Co.  v.  Harrell,  8  Tex.  Civ.  App.  368,  27  S.  W. 
1084;  Parlin  &  Orendorff  Co.  v.  Molina  Plow  Co.,  27  S.  W. 
1087,  ("Tex.  Civ.  App.)   (no  State  Cit.). 


TEXAS.  437 

Election  of  Remedies. 

Where  vendor  has  two  or  more  concurrent  remedies  and 
takes  advantage  of  one,  the  others  are  deemed  to  be  vv^aived. 
Foreclosure  as  upon  a  chattel  mortgage,  or  of  the  common  law 
lien  exists  in  this  state.  Merchants  etc.  Bank  v.  Thomas  &  Son, 
69  Tex.  237,  6  S.  W.  565;  Parlin  &  One  v.  Harrell,  27  S.  W. 
1087.  (^o  State  Cit.)  ;  Abacock  v.  St.  Louis  Typefoundry,  59 
Tex.  514;  San  Antonio  Brew.  Assn.  v.  Arctic  Machine  Co. 
etc.,  81  Tex.  99,  16  S.  AV.  797;  Bensinger  etc.  v.  Cain,  18  S.  W. 
136,  (Tex.  Civ.  App.),  (no  State  Cit.)  ;  Clark  v.  West  Pub.  Co., 
26  S.  W.  527,  (Tex.  Civ.  App.),  (no  State  Cit.)  ;  Loftus  v.  King, 
23  Tex.  Civ.  App.  36,  56  S.  W.  109;  Hollenberg  Music  Co.  v. 
Morris,  35  S.  W.  396,  (Tex,  Civ.  App.),  (no  State  Cit.)  :  Moore 
et  al  V.  Masterson,  19  Tex.  Civ.  App.  308,  46  S.  W.  855 ;  Eason 
et  al  V.  Garrison  &  One,  36  Tex.  Civ.  App.  574,  82  S.  W.  800. 

Repossession  and  Refund. 

A  conditional  sale  contract  in  Texas  is  in  law  a  chattel 
mortgage,  and  when  vendee  is  in  default  the  equity  existing  in 
his  favor  can  only  legally  be  cut  ofif  by  a  foreclosure  proceeding. 
It  is  possible  that  he  might  waive  such  rights  by  a  contract  en- 
tered into  after  default,  whereby  a  valid  consideration  passed 
to  him ;  but  no  decision  has  been  found  upholding  such  a  course. 
Harling  v.  Creech,  88  Tex.  300,  31  S.  W.  357;  Henderson  v. 
Mahoney,  31  Tex.  Civ.  App.  539,  72  S.  W.  1019. 

Railroad  Equipment. 

Railroad  equipment  or  rolling  stock  may  be  delivered  un- 
der conditional  sale  contract  or  lease  with  option  to  purchase. 
The  contract  must  be  in  writing  signed  by  all  parties  and  in  or- 
der to  be  valid  as  against  creditors  of,  or  subsequent  purchasers 
and  mortgagees  or  lien  holders  in  good  faith  from,  the  vendee 
or  lessee  or  bailee  ;  the  original  must  be  recorded  with  the  sec- 
retary of  state.  (There  seems  to  be  no  requirement  for  wit- 
nessing, acknowledgment  or  proof).    When  the  amount  of  such 


438  CONDITIONAL  SALES. 

contract  shall  have  been  paid  in  full  and  its  terms  and  con- 
ditions performed,  the  vendor,  or  lessor  or  bailor,  or  his  or  its 
assignee  may  make  a  declaration  to  that  effect,  which  said 
declaration  may  be  made  on  the  margin  of  the  record  of  the  con- 
tract, duly  attested  or  by  a  separate  instrument  in  writing  ac- 
knowledged by  the  vendor,  lessor  or  bailor  or  his  or  its  as- 
signee. Fees  to  the  secretary  of  state  are  $5.00  for  recording 
such  contract  or  declaration,  and  $1.00  for  noting  such  declara- 
tion, on  the  margin  of  the  record.  Vernon's  Sayles'  Civil 
Statutes,  Article  5655. 


UTAH. 


Legal  Status  of  Conditional  Sale  Contracts. 

Conditional  contracts  of  sale  are  not  provided  for  by- 
statute  law  in  this  state  except  as  to  railroad  equipment,  but  are 
recognized  as  valid  by  court  decisions.  Shoshonetz  v.  Camp- 
bell, 7  Utah  46,  24  Pac.  672 ;  Hirsch  &  One  v.  Steele,  10  Utah 
18,  36  Pac.  49;  Detroit  Heating  etc.  Co.  v.  Stevens,  16  Utah 
177,  52  Pac.  379;  Freed  Furniture  &  Carpet  Co.  v.  Sorensen, 
28  Utah  419,  79  Pac.  564;  Walker  v.  Consolidated  Wagon  etc. 
Co.,  41  Utah  255,  126  Pac.  308;  I.  X.  L.  Stores  v.  Moon,  162 
Pac.  622. 

How  Executed. 

They  should  be  in  writing  signed  by  the  vendee  but  do 
not  need  to  be  signed  by  the  vendor,  the  acceptance  of  such  a 
contract  on  the  part  of  the  vendor  by  acting  upon  it  or  shipping 
the  goods  being  sufficient  to  make  a  binding  contract  as  be- 
tween the  parties  thereto.  There  is,  however,  no  objection  to 
contract  being  formally  signed  and  accepted  by  the  vendor. 

Acknowledgment  or  Proof. 

Such  a  contract  needs  no  subscribing  witness  or  acknowl- 
edgment, or  proof  in  order  to  make  it  valid  as  to  the  parties 
thereto. 

Recording  or  Filing. 

No  recording  or  filing  is  required  in  order  that  a  con- 
ditional sale  contract  shall  be  valid  as  to  all  third  parties. 

439 


440  '  CONDITIONAL  SALES. 

Recording  Fee. 

No  provision. 

Re-Recording  or  Renewal. 

No  provision. 

Discharge. 

No  provision. 

Criminal  Liability  of  Vendee. 

No  provision. 

Loss,  Who  Must  Bear. 
No  cases  found. 

Fixtures. 

No  cases  found. 

Landlord's  Lien. 

A  landlord  has  no  lien  for  rent  on  property  located  upon 
his  premises  when  such  property  is  covered  by  a  conditional 
sale  contract.  Compiled  Laws,  §§  1407-8,  1414.  Passow  v. 
Emery,  37  Utah  49,  106  Pac.  935. 

Notes. 

The  giving  of  notes  under  a  conditional  sale  contract  does 
not  ordinarily  supersede  such  contract  and  is  only  a  convenient 
method  of  evidencing  deferred  payments.  If,  however,  too 
great  a  part  of  the  contract  is  included  in  the  notes  or  if  they 
contain   additional  provisions,  then  it  may  become  necessary 


UTAH.  441 

to  record  same  and  the  notes  are  made  non-negotiable.  Lippin- 
cott  &  Co.  V.  Rich  et  al,  22  Utah  196,  61  Pac.  526;  Standard 
Steam  Laundry  v.  Dole,  22  Utah  311,  61  Pac.  1103. 

Election  of  Remedies. 

The  question  as  to  whether  a  vendor  under  conditional 
sale  contract  may  sue  for  a  money  judgment,  and  if  no  collec- 
tion is  made,  afterwards  replevin  the  property,  has  not  been 
passed  upon  by  the  courts  of  this  state. 

Repossession  and  Refund. 

No  cases  found. 

Railroad  Equipment. 

A  conditional  contract  of  sale,  or  lease  with  option  to  pur- 
chase, railroad  or  street  railway  equipment  must  in  order  to  be 
valid  as  to  subsequent  judgment  creditors,  and  subsequent 
bona  fide  purchasers  for  value  and  without  notice,  be  in  writ- 
ing signed  by  all  parties,  and  acknowledged  by  vendee  or  les- 
see or  bailee  and  be  filed  for  record  with  the  secretary  of  state  and 
each  locomotive  engine  or  car  so  sold,  leased,  or  hired,  shall  have 
plainly  marked  on  each  side  thereof  the  name  of  the  vendor, 
or  lessor,  or  bailor,  in  letters  at  least  one  inch  in  size  followed 
by  the  word  "owner"  or  "lessor"  or  "bailor"  as  the  case  may 
be.  The  fee  for  recording  such  a  contract  is  fifty  cents  for  the 
first  folio  (100  words)  and  twenty  cents  for  each  additional 
folio.  When  such  contract  has  been  paid  in  full  the  vendor, 
lessor  or  bailor,  or  his  or  its  assignee  shall  make  a  declaration 
in  writing  to  that  effect,  which  may  be  made  either  on  the  mar- 
gin of  the  record  duly  attested,  or  by  a  separate  instrument 
acknowledged  by  the  vendor,  or  lessor  or  bailor  or  his  or  its 
assignee,  which  must  be  recorded. 

Fee  for  release  on  margin  25  cents.  Compiled  Laws,  §§ 
45^>  X  2-3,  973. 


^2  CONDITIONAL  SALES    (uTAH). 


VERMONT. 


Legal  Status  of  Conditional  Sale  Contracts. 

Conditional  contracts  of  sale  are  provided  for  by  statute 
law  in  this  state.  Public  Statutes,  §  2663.  Armington  v.  Hous- 
ton, 38  Vt.  448;  Morgan  v.  Kidder  &  One,  55  Vt.  367;  Collen- 
der  Co.  v.  Marshal,  57  Vt.  232;  Church  v.  McLeod,  58  Vt.  541, 
3  Atl.  490;  Barrett  etc.  v.  Kelley,  66  Vt.  515,  29  Atl.  809; 
French  v.  Osmer,  67  Vt.  427,  32  Atl.  254;  Lord  etc.  v.  Buchanan, 
69  Vt.  320,  37  Atl.  1048;  Town  of  Grand  Isle  v.  McGowan  et  al, 
88  Vt.  140,  92  Atl.  6;  Rogers  v.  Whitney,  91  Atl.  419. 


How  Executed. 

The  law  provides  that  there  shall  be  an  instrument  in  writ- 
ing containing  a  memorandum  of  the  agreement,  which  shall 
be  signed  by  the  purchaser  and  shall  show  the  amount  to  be 
paid.  In  other  words  the  contract  must  be  in  writing  signed  by 
the  vendee  but  does  not  need  to  be  signed  by  the  vendor.  Pub- 
lic Statutes,  §  2663.  Whitcomb  v.  Woodworth,  54  Vt.  544; 
Nye  V.  Daniels,  75  Vt.  81,  53  Atl.  105 ;  Kimball  v.  Costa,  76  Vt. 
289,  56  Atl.  1009. 


Acknowledgment  or  Proof. 

Such  a  contract  is  valid  as  between  the  parties  thereto 
without  acknowledgment  or  proof,  or  filing,  or  recording  but 
in  order  to  make  it  valid,  and  to  hold  title  as  against  attaching 
creditors  or  subsequent  purchasers  without  notice  it  is  neces- 
sary that  same  be  recorded. 

443 


/|/^/|  CONDITIONAL  SALES. 

Recording  or  Filing. 

In  order  to  protect  the  vendor  as  against  attaching  cred- 
itors, or  subsequent  purchasers  without  notice,  the  original 
contract  must  be  recorded,  within  30  days  after  delivery  of  the 
property,  with  the  town  clerk  of  the  town  where  the  purchaser 
resides  if  within  the  state,  and  if  not  such  resident  then  in  the 
same  office  of  the  town  where  the  vendor  resides.  It  is  not 
necessary  that  such  contract  be  acknowledged  by  the  vendee, 
nor  that  it  be  signed  or  proven  by  a  subscribing  witness  in  or- 
der to  be  recorded.  There  is  no  provision  for  filing  such  a  con- 
tract. Public  Statutes,  §  2663.  Fairbanks  etc.  Co.  v.  Davis  & 
One,  50  Vt.  251  ;  McPhail  v.  Gerry,  55  Vt.  174. 


Recording  Fee. 

The  fee  for  recording  such  an  instrument  is  10  cents  per 
folio  of  one  hundred  words ;  no  charge  to  be  less  than  25  cents. 
Public  Statutes,  §  6257. 


Re-Recording  or  Renewal. 

The  contract  is  valid  for  the  term  of  six-  years.  There  is 
no  provision  for  re-recording  or  renewal. 

Discharge. 

The  vendor  shall  after  full  payment  of  the  contract,  and 
upon  tender  of  reasonable  fees  for  such  service,  discharge  such 
lien  within  ten  days  after  notice,  or  be  liable  to  a  $10.00  fine 
and  all  damages  occasioned  by  his  failure  so  to  do.  Such  con- 
tract may  be  discharged  by  an  entry  acknowledging  satisfac- 
tion of  the  lien  and  made  by  the  vendor,  his  executor,  attorney 
or  assigns  on  the  page  of  the  book  where  the  contract  is  re- 
corded, or  by  a  like  entry  on  the  writing  creating  the  lien.  Or 
the  contract  may  be  discharged  by  recording  a  release  executed 
by  the  vendor  or  his  representatives  as  named  above. 


VERMONT. 


445 


Fee  for  release.  lo  cents  per  folio  of  one  hundred  words. 
Public  Statutes,  §§  2664-65. 


Criminal  Liability  of  Vendee. 

If  a  person  in  possession  of  personal  property  which  has 
a  duly  recorded  lien  reserved  thereon,  sells,  conceals  or  removes 
such  property  from  the  state  without  consent  of  the  vendor  and 
with  intent  to  defraud,  etc.,  he  shall  be  fined  a  sum  not  exceed- 
ing double  the  value  of  the  property,  one-half  of  such  fine  to 
be  paid  to  the  vendor  and  one-half  to  the  municipal  treasury 
liable  for  the  payment  of  the  costs  of  such  prosecution,  i.  e.,  of 
the  town,  city  or  village  where  prosecution  takes  place.  Public 
Statutes,  §§  2670-71. 


Loss,  Who  Must  Bear. 

If  property  held  under  conditional  sale  agreement  shall  be 
destroyed  before  payment  in  full,  such  fact  does  not  relieve  the 
vendee  from  his  obligation.  Fuller  v.  Bussell,  34  Vt.  107;  La 
Valley  v.  Ravenna,  78  Vt.  152,  62  Atl.  47. 


Fixtures. 

Where  personal  property  sold  under  conditional  contract 
of  sale  has  been  fastened  to  a  building  in  such  manner  that  it 
may  be  removed  without  material  injury  to  the  building  or  to 
itself,  the  vendor  is  entitled  to  possession  upon  failure  of  the 
contract  payments.  If,  however,  the  property  has  been  so  at- 
tached to  the  building  as  to  become  a  material  part  thereof,  and 
so  it  cannot  be  removed  without  great  injury  to  the  building  or 
to  itself,  the  vendor  cannot  recover  the  property  but  must 
bring  an  action  in  equity  to  have  the  balance  unpaid  on  the  con- 
tract declared  a  lien  against  the  building  itself.  Davenport  v. 
Shants  et  al,  43  Vt.  546;  Buzzell  v.  Cummings,  61  Vt.  213,  18 
Atl.  93  ;  Page  v.  Edwards,  64  Vt.  124,  23  Atl.  917 ;  Paine  v.  Mc- 
Dowell, 71  Vt.  28,  41  Atl.  1042. 


446  CONDITIONAL  SALES. 

Landlord's  Lien. 

A  landlord  in  this  state  has  no  lien  for  rent  upon  personal 
property  located  in  his  premises. 


Notes. 

A  conditional  sale  agreement  may  be  embodied  in  a  note 
form  but  on  account  of  the  requirement  for  recording  it  is  ad- 
visable to  secure  an  ordinary  form  of  contract  which  can  be  re- 
corded and  allow  the  notes  merely  to  evidence  the  deferred  pay- 
ments. Where  notes  are  given  following  a  written  contract  the 
presumption  of  payment  arises,  but  this  may  be  rebutted.  Page 
V.  Edwards,  64  Vt.  124,  23  Atl.  917;  Kimball  v.  Costa,  76  Vt. 
289,  56  Atl.  1009. 

Election  of  Remedies. 

Where  two  or  more  remedies  exist,  and  vendor  seeks  to 
enforce  one  of  them,  the  others  are  lost.  Root  v.  Lord,  23  Vt. 
568,  Matthews  v.  Lucia,  55  Vt.  308. 


Repossession  and  Refund. 

Thirty  days  after  the  terms  of  a  conditional  contract  of 
sale  are  broken,  the  vendor  or  his  assigns  may  cause  the  prop- 
erty to  be  sold,  by  a  public  officer  at  public  auction  in  the  town 
where  vendee  resides  or  where  such  property  is  located ;  ten 
days  notice  of  such  sale  shall  be  given  by  posting  written  no- 
tice thereof  in  two  public  places  in  said  town,  and  by  serving  such 
notice  personally  on  the  vendee  if  a  resident  of  the  town  or  by 
mail  if  he  is  not,  at  least  ten  days  before  the  date  of  sale.  Out 
of  the  proceeds  of  such  sale  the  vendor  shall  be  paid  the  amount 
due  under  his  contract  with  costs  and  expenses,  and  the  bal- 
ance must  be  paid  over  to  the  vendee.  Any  vendor  who  takes 
possession  of  the  property  under  a  conditional  contract  of  sale 
and  does  not  sell  it  as  above  provided  shall  be  liable  for  con- 


VERMONT.  447 

version.  The  requirements  as  to  sale  can  however,  undoubtedly 
be  avoided  by  means  of  a  written  contract  between  the  vendee 
and  vendor,  wherein  the  vendor  agrees  to  release  the  vendee 
from  further  payments  and  as  a  consideration  therefor  the  ven- 
dee releases  the  vendor  from  his  obligation  to  make  a  sale. 
Public  Statutes,  §§  2666-67.  Taylor  v.  Finley,  48  Vt.  78 ;  Rob- 
erts V.  Hunt,  61  Vt.  612,  17  Atl.  1006;  Moses  v.  Rogers,  62  Vt. 
84,  19  Atl.  118;  Clark  v.  Clement,  75  Vt.  417,  56  Atl.  94. 

Railroad  Equipment. 

Conditional  contracts  of  sale,  or  leases  with  option  to  pur- 
chase, covering  railroad  or  street  railway  equipment  or  rolling 
stock,  must  be  in  writing,  and  in  order  that  same  shall  be  valid 
as  against  subsequent  judgment  creditors,  or  subsequent  bona 
fide  purchasers  for  value  and  without  notice,  the  contract  must 
be  acknowledged  by  the  vendee,  lessee,  or  bailee  as  the  case 
ma}'  be,  or  be  duly  proved  in  the  same  manner  as  a  deed  of  real 
estate,  and  be  recorded  with  the  secretary  of  state.  Each  loco- 
motive engine  or  car  so  sold,  leased  or  hired  shall  have  the 
name  of  the  vendor,  lessor  or  bailor  plainly  marked  on  each 
side  thereof  followed  by  the  word  "owner,"  "lessor"  or  "bailor" 
as  the  case  may  be. 

Upon  payment  in  full  a  declaration  in  writing  to  that  effect 
shall  be  made  by  the  vendor,  lessor  or  bailor  or  his  or  its  as- 
signee, which  declaration  may  be  made  on  the  margin  of  the 
record  duly  attested,  or  it  may  be  by  a  separate  instrument  ac- 
knowledged and  recorded.     Public  Statutes,  §§  4389-90. 


448  CONDITIONAL  SALES  (VERMONT). 


VIRGINIA. 


Legal  Status  of  Conditional  Sale  Contracts. 

Conditional  contracts  of  sale  are  provided  for  by  statute 
law  in  this  state.  Virginia  Code,  §  2462,  Sub.  Div.  I.  Hash  v. 
Lore  &  Others,  88  Va.  716,  14  S.  E.  365;  Arbuckle  Bros.  v. 
Gates  &  Brown,  95  V^a.  802,  30  S.  E.  496;  Exposition  Arcade 
Corp.  V.  Lit  Bros.,  113  Va.  574,  75  S.  E.  117;  Levy  &  Co.  v. 
Davis,  115  Va.  814,  80  S.  E.  791. 


How  Executed, 

They  must  be  in  writing,  and  be  signed  by  all  parties 
thereto.  Virginia  Code,  §  2642,  Sub.  Div.  L  Colonial  Trust 
Co.  v.  Thorpe,  194  Fed.  390;  Corbett  v.  Riddle,  209  Fed.  811. 


Acknowledgment  or  Proof. 

Such  a  contract  needs  no  subscribing  witness,  nor  does  it 
require  acknowledgment  or  proof ;  but  in  order  to  hold  title  as 
against  creditors  of,  and  purchasers  from  the  vendee,  there 
must  be  a  docketing. 

Recording  or  Filing. 

The  laws  of  this  state  provide  for  docketing  certain  infor- 
mation regarding  conditional  sale  contracts,  so  that  same  may  be 
valid  as  to  creditors  of.  and  purchasers  from  vendee.  There 
is  no  definite  time  provided  within  whicli  such  docketing  shall 
be  made,  but  in  order  that  all  questions  may  be  avoided  the  acts 
should  be  done  before  vendee  secures  possession  of  the  prop- 

449 


450  CONDITIONAL  SALES. 

erty.  The  docketing  official  is  the  clerk  of  the  circuit  court  for 
the  county  where  the  property  may  be  located,  unless  same  be 
in  a  corporation  or  city  having  a  population  of  5,000  or  over, 
when  he  will  be  the  clerk  of  the  corporation  or  city  court ;  ex- 
cept in  the  city  of  Richmond  where  the  chancery  court  clerk  is 
the  proper  officer. 

The  original  contract  must  be  sent,  and  from  it  shall  be 
taken  and  placed  in  the  record  book  six  essential  features  (i) 
Date  of  Contract.  (2)  Amount  due  thereon.  (3)  When  pay- 
able. (4)  How  payable.  (5)  A  brief  description  of  the  goods 
or  chattels.  (6)  Names  of  vendor  and  vendee.  Virginia  Code, 
§  2462,  Sub.  Div.  I. 

If  any  person  transact  business  as  a  trader  with  the  addi- 
tion of  the  words  "Factor,"  "Agent,"  "and  Company"  or  "& 
Co."  and  fail  to  disclose  the  name  of  his  principal  or  partner 
by  a  sign  in  letters  easy  to  be  read  placed  conspicuously  at  the 
house  where  such  business  is  transacted,  and  also  by  a  notice 
published  for  two  weeks  in  a  newspaper  (if  any)  printed  in  the 
city,  town  or  county  wherein  the  same  is  transacted ;  or  if  any 
person  transact  such  business  in  his  own  name  without  any 
such  addition,  all  the  property,  stock  and  choses  in  action  ac- 
quired or  used  in  such  business,  shall  as  to  the  creditors  of  any 
such  person  be  liable  for  the  debts  of  such  person.  This  section 
shall  not  apply  to  a  person  transacting  such  business  under  a 
license  to  him  as  an  auctioneer  or  commission  merchant.  Vir- 
ginia Code,  §  2877. 

As  to  persons  (individuals)  transacting  business  in  Vir- 
ginia, who  buy  property  on  the  conditional  sale  or  installment 
plan,  great  care  should  be  exercised  concerning  the  credit 
standing  of  such  customers.  The  above  quoted  sections  of  the 
Code  are  in  conflict,  and  no  conditional  sale  contract  properly 
docketed  before  such  a  vendee  secured  possession  of  the  prop- 
erty, has  been  passed  upon  by  the  courts,  where  the  rights  of 
such  vendor  as  against  the  creditors  of  such  a  vendee  were  in- 
volved. It  seems  advisable  to  say  that  such  a  vendor  should  be 
protected,  at  least  if  his  contract  is  properly  docketed,  but  the 


VIRGINIA.  451 

law  is  not  definitely  settled  upon  this  point.  Benjamin  &  Co. 
V.  Madden,  94  Va.  66,  26  S.  E.  392 ;  Hoge  et  al  v.  Turner,  96  Va. 
624,  32  S.  E.  291 ;  Edmunds  v.  Hobbie  Piano  Co.,  97  Va.  588, 
34  S.  E.  472;  Partlow  v.  Lickliter,  100  Va.  631,  42  S.  E.  671 ; 
National  Cash  Register  Co.  v.  Burrow,  no  Va.  785,  dy  S.  E. 
370;  National  Cash  Register  Co.  v.  Norfolk  City  Realty  Co., 
no  Va.  791,  67  S.  E.  372;  The  Liquid  Carbonic  Co.  v.  White- 
head, 115  Va.  586,  80  S.  E.  104. 


Recording  Fee. 

The  fee  for  docketing  such  a  contract  and  indexing  same 
to  all  parties  is  25  cents.    Virginia  Code,  §  2462,  Sub.  Div.  I. 


Re-Recording  or  Renewal. 

The  contract  is  valid  for  the  term  of  five  years ;  there  is  no 
provision  for  re-recording  or  renewal. 


Discharge. 

Such  a  contract  must  be  discharged  after  payment  and  a 
failure  on  the  part  of  the  vendor  to  make  such  discharge  after 
receiving  fifteen  days'  notice  so  to  do  subjects  him  to  a  penalty 
of  $5.00,  payable  to  the  vendee.  The  contract  may  be  dis- 
charged either  by  the  vendor,  or  his  duly  authorized  agent  or 
attorney,  appearing  in  person  before  the  clerk  and  marking  the 
contract  "Released"  on  the  page  of  the  book  where  docketed, 
which  action  shall  be  attested  by  the  clerk,  or  otherwise  by  a 
written  request  to  discharge  sent  to  the  clerk  in  whose  office 
the  instrument  is  docketed,  such  request  being  signed  by  the 
vendor,  his  agent  or  attorney,  and  showing  that  the  amount 
under  the  contract  has  been  paid  in  full.  Such  a  writing  should 
be  in  the  form  of  a  release.  Fee  for  release,  25  cents.  Virginia 
Code,  §.  2462  A. 


452  CONDITIONAL  SALES. 

Criminal  Liability  of  Vendee. 

Selling  or  disposing  of  property  held  under  conditional 
contract  of  sale,  unless  with  the  written  consent  of  the  vendor, 
is  a  crime  punishable  as  larceny.  Where  the  value  of  the  prop- 
erty is  less  than  $50.00  the  punishment  is  by  imprisonment  in 
the  county  jail  for  not  less  tlian  fifteen  days,  nor  more  than  six 
months,  or  by  a  fine  of  not  less  than  $5.00  nor  more  than  $100 
or  both.  Where  the  value  of  the  property  is  $50.00  or  more,  the 
punishment  is  by  imprisonment  in  the  penitentiary  for  not  less 
than  one  year  nor  more  than  ten  years.  Virginia  Code,  §§ 
3707,  3719  A. 

Loss,  Who  Must  Bear. 

Where  property  is  delivered  under  conditional  sale  con- 
tract and  is  destroyed  before  payment  in  full,  the  loss  falls  on 
vendee.  Exposition  Arcade  Corporation  v.  Lit  Bros.,  113  Va. 
574,  75  S.  E.  117. 

Fixtures. 

Where  property  delivered  under  conditional  sale  contract 
has  been  fastened  to  a  building  in  such  a  manner  that  same  may 
be  removed  without  material  injury  to  the  building  or  to  itself 
then  upon  default,  vendor  is  entitled  to  possession.  If,  how- 
ever, the  property  has  been  so  attached  to  a  building  as  to  be- 
come a  material  part  thereof  and  incapable  of  being  removed 
without  great  injury  to  the  building  or  to  itself,  it  cannot  be  re- 
possessed and  vendor's  remedy  would  be  by  action  in  equity 
to  charge  the  amount  unpaid  as  a  lien  upon  the  building.  Mon- 
arch Laundry  v.  Westbrook,  109  Va.  382.  63  S.  E.  1070;  Holt 
V.  Henley,  etc.,  232  V.  S.  637. 

Landlord's  Lien. 

A  landlord's  lien  for  rent  of  the  building  in  which  property 
held  under  conditional  contract  of  sale  is  placed  is  prior  to  such 


VIRGINIA.  453 

contract  unless  same  has  been  docketed  before  the  property  is 
moved  upon  his  premises.     Virginia  Code,  §  2791. 

Notes. 

No  cases  found. 

Election  of  Remedies. 

No  cases  found. 

Repossession  and  Refund. 

No  cases  found. 

Railroad  Equipment. 

A  conditional  sale  contract  covering  railroad  equipment  or 
rolling  stock,  in  order  that  same  sliall  be  valid  as  to  creditors 
of  and  purchasers  for  value  without  notice  from  vendee  must 
be  in  writing  and  admitted  to  record  in  the  clerk's  office  of  the 
circuit  or  corporation  court  of  the  county  or  corporation  where 
the  principal  office  of  the  vendee  is  located  within  the  state,  or 
if  in  the  city  of  Richmond  in  the  office  of  the  clerk  of  the  chan- 
cery court.  A  copy  of  such  contract  must  also  be  filed  with  the 
state  corporation  commission,  and  each  locomotive  or  car  so 
sold  must  be  plainly  and  permanently  marked  with  the  name 
of  the  vendor  nn  both  sides  thereof  followed  l)y  the  word 
"owner." 

In  order  to  be  filed  for  record  the  contract  must  be  ac- 
knowledged by  the  vendee  in  person. 

The  provisions  for  fees  and  discharge  of  ordinary  condi- 
tional sale  contracts  apply  as  well  to  these.  X'^irginia  Code.  § 
2462.  .Sub.  Div.  T.  2462  .'\. 


454  CONDITIONAL  SALES  (Virginia). 


WASHINGTON. 


Legal  Status  of  Conditional  Sale  Contracts. 

Conditional  contracts  of  sale  are  provided  for  by  statute 
law  in  this  state.  Rem.  1915,  Code.  §  3670.  Cherry  v. 
Arthur,  5  Wash.  787,  32  Pac.  744;  Kidder  v.  Wittler-Corbin 
Machine  Co.,  38  Wash.  179,  80  Pac.  301 ;  National  Cash 
Register  Co.  v.  Petsas,  43  Wash.  376,  86  Pac.  662 ;  Gen- 
nelle  v.  Boulais,  48  Wash.  310,  93  Pac.  421  ;  Wittler-Corbin 
Co.  V.  Martin,  47  Wash.  123,  91  Pac.  629;  Wittler- 
Corbin  Co.  V.  Martin,  on  appeal,  same  effect,  53  Wash.  65, 
loi  Pac.  494;  First  Church  etc.  v.  Southern  S.  &  C.  Co.,  '](> 
Wash.  367,  136  Pac.  127;  Lundberg  v.    Kitsap  County  Bank, 

79  Wash.  75,  139  Pac.  769 ;  Eilers  Music  House  v.  Fairbanks, 

80  Wash.  379,  141  Pac.  885 ;  Eilers  Music  House  v.  Archer,  81 
Wash.  698,  142  Pac.  453 ;  Winton  Motor  Carriage  Co.  v.  Blom- 
berg,  84  Wash.  451,  147  Pac.  21;  Crosier  v.  Cudihee  et  al,  85 
Wash.  237,  147  Pac.  1146;  Duarte  v.  Minnick  et  al,  85  Wash. 
539,  148  Pac.  6go;  Norman  v:  Meeker,  91  Wash.  534,  158  Pac. 
78;  Peterson  v.  Chess,  92  Wash.  682,  159  Pac.  894;  Sunel  v. 
Riggs,  160  Pac.  950;  Stotts  v.  Puget  Sound  etc.  Co.,  162  Pac. 
519- 

How  Executed. 

They  must  be  in  writing  signed  by  all  parties  thereto. 
Edison  General  Electric  Co.  v.  Walter.  10  Wash.  14,  38  Pac. 
752;  In  re:  Osborn,  Purcell  Safe  Co.  v.  Parker,  196  Fed.  257; 
In  re:  Pac.  Electric  &  Automobile  Co.,  224  Fed.  220;  In  re: 
Frankel,  225  Fed.  129;  In  re:  Covington  Lbr.  Co.,  225  Fed.  444. 

455 


45^  CONDITIONAL  SALES. 

Acknowledgment  or  Proof. 

Such  a  contract  is  valid  as  between  the  parties  thereto 
without  a  subscribing  witness,  acknowledgment  or  proof,  or 
filing  or  recording;  but  in  order  to  make  it  valid  and  to  hold 
title  as  against  bona  fide  purchasers,  pledgees,  mortgagees,  en- 
cumbrancers and  subsequent  creditors,  whether  or  not  such 
creditors  have  or  claim  a  lien  upon  such  property,  it  must  be 
filed.  It  is  not  necessary  that  the  contract  be  acknowledged 
by  either  the  vendee  or  vendor,  nor  that  it  be  signed  or  ])roven 
bv  a  subscribing  witness  in  order  to  be  so  filed. 


Recording  or  Filing. 

There  is  no  provision  for  recording  such  a  contract  in  this 
state,  but  in  order  to  hold  title  as  against  the  parties  above 
named,  it  is  necessary  that  the  original  contract,  signed  by  the 
vendor  and  vendee,  or  a  memorandum  so  signed,  be  filed  in  the 
county  auditor's  office  of  the  county  where  the  vendee  resides. 
The  filing  must  be  made  within  ten  days  after  the  vendee  takes 
possession.  Rem.  191 5,  Code  §  3670;  American  Multigraph 
Sales  Co.  v.  Jones,  58  Wash.  619,  109  Pac.  108:  Fidalgo  etc.  Co. 
V.  Brown,  61  Wash.  516,  112  Pac.  629;  Sumner  Iron  Works  v. 
Wolten,  61  Wash.  689,  112  Pac.  1109;  Worley  v.  Metropolitan 
Motor  Car  Co.,  72  Wash.  243,  130  Pac.  107;  First  National 
Bank  of  Everett  v.  Wilcox,  72  Wash.  473,  130  Pac.  756;  Casey- 
Hedges  Co.  V.  Wilcox,  72  Wash.  605,  131  Pac.  205;  Burroughs 
Adding  Machine  Co.  v.  Wilcox,  72  Wash.  700,  131  Pac.  206; 
North  Coast  Dry  Kiln  Co.  v.  Montecoma  etc..  82  Wash.  247, 
144  Pac.  58;  Anderson  et  al  v.  Langford,  91  Wash.  176,  157 
Pac.  456;  Chilberg  v.  Smith,  174  Fed.  805. 

Recording  Fee. 

The  fee  for  filing  such  a  contract  has  been  somewhat  in 
doubt,  either  25  or  50  cents,  as  there  were  two  sections,  of  the 
code  covering  it;  but  on  September  2"/,  1912,  the  attorney  gen- 
eral rendered  his  opinion  in  favor  of  the  larger  amount,  and 


WASHINGTON.  457 

that  is  the  sum  now  usually  charged.    Rem.  1915.  Code  §§  3671, 
3936. 

Re-Recording  or  Renewal. 

Such  a  contract  is  valid  for  the  term  of  six  years.  There 
is  no  provision  for  re-recording  or  renewal. 

Discharge. 

No  provision. 

Criminal  Liability  of  Vendee. 

It  is  a  crime  to  injure  or  destroy,  sell,  conceal,  dispose  of  or 
remove  from  the  county  where  same  is  situated  when  posses- 
sion passes  to  the  vendee,  property  covered  by  conditional  sale 
contract.  Such  acts  are  punishable  as  a  misdemeanor  by  im- 
prisonment in  the  county  jail  for  not  more  than  one  year,  or 
by  a  fine  of  not  more  than  $1000.00,  or  both.  Rem.  191 5,  Code, 
§  2267,  2629. 

Loss,  Who  Must  Bear, 

In  those  instances  where  property  conditionally  sold  shall 
be  lost,  injured  or  destroyed  before  payment  without  fault  of 
the  vendee,  such  loss  falls  on  the  vendor.  It  would  be  possible 
undoubtedly  to  shift  this  obligation  by  an  appropriate  clause  in 
the  contract  especially  providing  that  vendee  shall  not  be  re- 
lieved from  payment  because  of  such  happenings.  Arthur  & 
Co.  V.  Blackman,  63  Fed.  536. 

Fixtures. 

Where  property  held  under  conditional  contract  of  sale  is 
attached  to  a  building  in  such  manner  that  it  may  be  removed 
without  material  injury  to  the  building  or  to  itself,  the  vendor 


458  CONDITIONAL  SALES. 

on  failure  of  the  contract  payments,  is  entitled  to  possession. 
If,  however,  the  property  cannot  be  removed  without  great 
damage  to  the  building  or  to  itself,  the  vendor  cannot  take  pos- 
session. His  remedy  then  is  by  an  action  in  equity  to  enforce 
a  lien  against  the  building  for  the  balance  unpaid.  Cherry  v. 
Arthur,  5  Wash.  787,  32  Pac.  744;  Wade  v.  Donau  Brewing 
Co.,  10  Wash.  284,  38  Pac.  1009;  Washington  N.  B.  v.  Smith, 

15  Wash.  160,  45  Pac.  736;  German  Savings  Society  v.  Weber, 

16  Wash.  95,  47  Pac.  224. 

Landlord's  Lien. 

There  is  no  provision  of  law  giving  landlords  a  lien  for 
rent  against  personal  property  located  upon  their  premises. 

Notes. 

Where  notes  are  given  under  a  conditional  contract,  care 
should  be  exercised  in  making  a  transfer  thereof,  for  otherwise 
title  to  the  property  will  be  deemed  to  have  passed  to  the  ven- 
dee. The  safe  rule  for  guidance  is  to  endorse  the  notes  and  as- 
sign the  contract  in  writing  to  the  same  party.  This  rule  might 
be  followed  with  profit  in  all  states  and  under  all  circumstances. 
Winton  Motor  Car  Co.  v.  Broadway  Auto  Co.,  65  Wash.  650, 
118  Pac.  817;  MacLeod  v.  Aberdeen  Brewing  Co.,  82  Wash.  74, 
143  Pac.  440. 

Election  of  Remedies. 

Where  a  vendor  has  two  or  more  concurrent  remedies  and 
seeks  to  enforce  one  the  others  are  usually  deemed  to  be  waived 
or  abandoned,  although  circumstances  may  vary  the  rule.  Jones 
V.  Reynolds,  45  Wash.  371,  88  Pac.  577;  Ramey  v.  Smith  et  al, 
56  Wash.  604,  106  Pac.  160;  Stewart  &  Homes  Truck  Co.  v. 
Reed  &  One,  74  Wash.  401,  133  Pac.  577;  Thompson  Co.  v. 
Murphine,  79  Wash.  672,  140  Pac.  1073 ;  Eilers  Music  House  v. 
Douglass,  90  Wash.  683,  156  Pac.  937. 


WASHINGTON.  459 

Repossession  and  Refund. 

There  appears  to  be  no  fixed  rule  in  this  state  regarding 
the  Uabihty  of  vendor  to  make  a  refund  after  repossession. 
Where  the  contract  shall  provide  that  no  repayment  is  required, 
that  feature  will  undoubtedly  be  enforced.  Eilers  Music  House 
V.  Oriental  Co.,  69  Wash.  6i8,  125  Pac.  1023 ;  Secor  v.  Close  as 
Sheriff  et  al,  83  Wash,  yj,  145  Pac.  56;  Jennings  v.  Schwartz 
86  Wash.  202,  149  Pac.  947;  Breaks  v.  Spokane  Auto  Co.,  93 
Wash.  143,  160  Pac.  291. 

Railroad  Equipment, 

Conditional  contracts  of  sale,  or  leases  with  option  to  pur- 
chase, covering  railroad  equipment  or  rolling  stocks  must  be 
in  writing,  and  in  order  that  same  shall  be  valid  as  against  any 
subsequent  judgment  creditor  or  any  subsequent  bona  fide  pur- 
chaser for  value  and  without  notice,  the  contract  must  be  ac- 
knowledged (does  not  state  by  whom)  and  be  filed  for  record 
in  the  office  of  the  county  auditor  of  the  county  in  which  at  the 
time  of  the  execution  thereof  is  situated  the  principal  office  of 
the  vendee  or  lessee  within  the  state.  Each  locomotive  engine 
or  car  so  sold  or  leased  shall  have  the  name  of  the  vendor  or 
lessor  plainly  marked  on  each  side  thereof  followed  by  the  word 
"owner"  or  "lessor"  as  the  case  may  be. 

Upon  payment  in  full  a  declaration  in  writing  to  that  effect 
shall  be  made  by  the  vendor  or  his  assignee,  which  declaration 
may  be  made  on  the  margin  of  the  record  duly  attested,  or  it 
may  be  made  by  a  separate  instrument  acknowledged  and  re- 
corded. 

Fee  for  recording  15  cents  per  folio.  Fee  for  marginal 
release  25  cents.  Rem.  1915,  Code,  §§  3936  8741-42;  Brady 
&  Son  V.  Bell,  162  Pac.  865. 


460  CONDITIONAL  SALES  (WASHINGTON'). 


WEST  VIRGINIA. 


Legal  Status  of  Conditional  Sale  Contracts. 

Conditional  contracts  of  sale  are  provided  for  by  statute 
law  in  this  state.  Code  of  W.  Va.,  §  3101.  Hyer  v.  Smith,  48 
W.  Va.  550,  37  S.  E.  632;  Troy  Wagon  Co.  v.  Hutton,  53  W. 
Va.  154,  43  S.  E.  135. 

How  Executed. 

They  must  be  in  writing  signed  by  the  vendee  but  do  not 
need  to  be  signed  by  the  vendor,  the  acceptance  of  such  a  con- 
tract on  the  part  of  the  vendor  by  acting  upon  it  or  shipping 
the  goods  being  sufficient  to  make  a  binding  contract  as  be- 
tween the  parties  thereto.  There  is,  however,  no  objection  to 
the  contract  being  formally  signed  and  accepted  by  the  vendor. 
Baldwin  v.  Van  Wagner,  33  W.  Va.  293,  10  S.  E.  716;  Toledo 
Scale  Co.  v.  Bailey,  90  S.  E.  345. 

Acknowledgment  or  Proof. 

No  subscribing  witness,  acknowledgment  or  proof  is  re- 
(|nired  upon  such  a  contract  for  any  purpose. 


Recording  or  Filing, 

There  is  no  provision  for  filing  in  this  state,  but  in  order 
to  hold  title  as  against  creditors  of,  and  purchasers  without  no- 
tice from  vendee,  a  notice  of  the  reservation  must  be  recorded 
in  the  miscellaneous  record  book  in  the  office  of  the  county 
court  clerk  of  the  county  where  the  property  is  located.     It  is 

461 


462  CONDITIONAL  SALES. 

not  necessary  to  record  the  original  nor  yet  a  copy  thereof,  al- 
though either  is  proper.  A  memorandum  of  the  agreement 
signed  by  the  vendor,  and  without  acknowledgment  or  proof 
may  be  used.  There  has  been  no  court  interpretation  as  to  just 
what  information  such  a  notice  shall  contain,  but  the  following 
form  is  believed  to  be  sufficient : 


NOTICE  OF  RESERVATION  OF  TITLE. 

NOTICE  IS  HEREBY  GIVEN :    That 

of and of 

did  on make  a  contract  covering  the 

following  described  property,  to  wit: 

(Describe  property.) 

whereby  possession  thereof  is  to  be  delivered  to 

and  title  thereto  is  to  remain  in 

until  paid  for  in  full  in  cash. 

The  amount  of  said  contract  is  $ upon  which  remains 

unpaid  the  sum  of  $ to  be  paid  as  follows : 

(Describe  payments.) 

Vendor. 

Dated  at 

this day  of 191 .... 


The  time  for  recording  such  notice  is  not  definitely 
fixed,  but  in  order  to  avoid  all  question  same  should  be  made 
before  vendee  secures  possession.  In  case  the  property  is  re- 
moved to  another  county,  a  like  memorandum  must  be  re- 
corded there  within  three  months,  in  the  office  of  the  clerk  of 
the  county  court.  Code  of  W.  Va.,  §§  3101,  3105.  Hatfield  v. 
Haubert,  51  W.  Va.  190,  41  S.  E.  144;  Webster  Lbr.  Co.  v.  Key- 
stone Lbr.  Co.,  51  W.  Va.  545,  42  S.  E.  632. 


WEST  VIRGINIA.  463 

Recording  Fee. 

Fee  for  recording  and  indexing  reservation  of  title  one  dol- 
lar. It  appears  to  make  no  difference  what  the  length  of  such  a 
contract  or  notice  may  be,  the  fee  is  the  same.  Code  of  W.  Va., 
Supplement  of  1909,  §  4096. 

Re-Recording  or  Renev^^al. 

Conditional  contracts  of  sale  when  recorded  are  valid  for 
the  term  of  ten  years.  There  is  no  provision  for  re-recording 
or  renewal.     Code  of  W.  Va.,  §  3499. 

Discharge. 

There  is  no  special  provision  for  releasing  a  conditional 
contract  of  sale  from  record,  and  no  penalty  is  provided  for 
failure  to  discharge  same  from  record  after  payment.  It  is  al- 
ways advisable,  however,  to  send  a  release  on  request  of  the 
vendor  or  other  proper  party,  no  matter  in  what  state  or  under 
what  conditions  the  contract  is  filed  or  recorded.  The  fee  for 
discharge  is  50  cents.    Code  of  W.  Va.,  Sup.  1909,  §  4096. 

Criminal  Liability  of  Vendee. 

No  provision. 

Loss,  Who  Must  Bear. 
No  cases  found. 

Fixtures. 

Where  property  sold  under  conditional  contract  of  sale 
has  been  fastened  to  a  building  in  such  a  manner  that  it  may 
be  removed  without  material  injury  to  the  building  or  to  itself, 
the  courts  of  this  state  have  decided  that  on  failure  of  the  con- 
tract payments  the   vendor  is  entitled  to  possession.     Where 


464  CONDITIONAL  SALES. 

liowever,  the  property  has  been  so  attached  to  a  building'  as  to 
become  a  material  part  thereof,  and  so  that  it  cannot  be  re- 
moved without  great  injury  to  the  building  or  to  itself,  the  ven- 
dor cannot  take  possession  and  his  remed}^  is  by  an  action  to 
have  the  amount  unpaid  charged  as  a  lien  against  the  building 
itself.  Hurxthal's  Ex.  v.  Hurxthal's  Heirs  et  al,  45  W.  Va.  584, 
\2  S.  E.  237 ;  Detroit  Steel  Co.  v.  Sistersville  Brewing  Co.,  233 
U.  S.  712. 

Landlord's  Lien. 

A  landlord's  lien  for  rent  of  the  building  in  which  property 
covered  by  conditional  contract  of  sale  is  placed  is  prior  to  such 
contract  unless  same  is  recorded  before  the  property  is  moved 
upon  his  premises.  Bartlett  v.  Loundes,  34  W.  Va.  493,  12  S. 
E.  762;  Hufifard  v.  Akers,  52  W.  Va.  21,  43  S.  E.  124;  Thomas 
Co.  V.  Lewis  Hubbard  &  Co.,  90  S.  E.  816;  Jeffry  Mfg.  Co.  v. 
Mound  Coal  Co.,  215  Fed.  222. 


Notes. 

No  cases  found. 

Election  of  Remedies. 

No  cases  found. 

Repossession  and  Refund. 

No  cases  found.  x 

Railroad  Equipment. 

Where  the  property  involved  is  railroad  equipment  or  roll- 
ing stock,  all  the  rules  heretofore  stated  apply,  except  that  no- 
tice of  reservation  must  be  recorded  with  the  secretary  of  state, 
and  the  fee  is  five  dollars.     Code  of  W.  Va.,  §  3101. 


WISCONSIN. 


Legal  Status  of  Conditional  Sale  Contracts. 

Conditional  contracts  of  sale  are  provided  for  by  statute 
laws  in  this  state.  The  general  rules  do  not  apply  fully  to  fur- 
niture and  other  household  eflfects,  for  which  reason  the  laws 
governing  such  sales  will  be  set  forth  separately.  (See  House- 
hold Furniture).  Wis.  Statutes,  §  2317.  Wheeler  &  Co.  v. 
Teetzlaff,  53  Wis.  211,  10  N.  W.  155;  The  Rawson  Mfg.  Co.  v. 
Richards,  69  Wis.  643,  35  N.  W.  40;  Thomas  &  One  v.  Rich- 
ards, 69  Wis.  671,  35  N.  W.  42;  Mershon  v.  Moors  &  One,  76 
Wis.  502.  45  N.  W^  95 ;  Wadleigh  v.  Buckingham,  80  Wis.  230, 
49  X.  W.  745 :  Aultman  &  Co.  v.  Silha  &  One,  85  Wis.  359,  55 
N.  A\'.  711  ;  Hyland  &  One  v.  Bohn  Mfg.  Co.,  92  Wis.  157,  65 
X.  W.  170;  Owen  v.  Long,  97  Wis.  78,  72  N.  W.  364;  Misha- 
waka  Woolen  Alfg.  Co.  v.  Teasdale.  145  \\'is.  jt^.  129  X.  W. 
671  ;  Deere  Plow  Co.  v.  Edgar,  etc.,  154  Wis.  490.  143  X.  \\'. 
194;  Mishawaka  ^^'oolen  Mfg.  Co.  v.  Smith,  158  Fed.  885. 


How  Executed. 

They  must  be  in  writing  signed  by  all  parties  thereto.  Wis- 
consin Statutes,  §  2317.  Williams  v.  Potter,  41  Wis.  422: 
Kiefer-liaessler  etc.  Co.  v.  Paulus,  149  Wis.  453,  135  X.  W. 
832. 

See  also:  Sheldon  Co.  v.  Mayers,  81  Wis.  627,  51  X.  W. 
1082;  Kellogg  v.  Costello  et  al,  93  Wis.  27^2,  67  X.  W.  24  Tufts 
v.  Brace,  103  Wis.  341.  79  X.  W.  414. 

465 


466  CONDITIONAL  SALES. 

Acknowledgment  or  Proof. 

Such  a  contract  is  valid  as  between  the  parties  thereto 
without  subscribing  witness,  acknowledgement  or  proof,  or  fil- 
ing or  recording,  but  in  order  to  make  it  valid  and  to  hold  title 
as  against  third  persons,  the  original  or  a  copy  thereof  mu'st  be 
filed. 


Recording  or  Filing. 

There  is  no  provision  in  this  state  for  recording  conditional 
sale  contracts,  but  same  must  be  filed  in  order  to  hold  title  as 
against  third  parties,  except  those  having  notice  thereof.  A 
copy  or  the  original  may  be  used  and  no  subscribing  witness, 
acknowledgment  or  proof  is  required,  but  the  contract  must  be 
signed  by  all  the  parties.  The  filing  officer  is  the  clerk  of  the 
town,  city  or  village  where  the  vendee  resides,  if  a  resident  of 
the  state ;  or  if  not  such  resident  then  in  the  clerk's  office  of  the 
town,  city  or  village  where  the  property  may  be  at  the  time 
of  taking  such  contract.  There  is  no  definite  time  provided 
within  which  this  filing  must  be  made,  but  in  order  to  avoid  all 
question  same  should  be  done  before  vendee  secures  posses- 
sion of  the  property.  (See  Household  Furniture).  Wisconsin 
Statutes,  §  2317.  Mershon  v.  Moors  &  One,  76  Wis.  502,  45  N. 
W.  95 ;  Gilpen  v.  Matchett,  153  Wis.  347,  141  N.  W.  235;  Essley 
Machinery  Co.  v.  Milwaukee  Motor  Co.  et  al,  160  Wis.  300.  151 
N.  W.  814. 


Recording  Fee. 

The  fee  for  filing  a  conditional  contract  of  sale  is  12  cents. 
Wisconsin  Statutes,  §  834. 

Re-Recording  or  Renewal. 

There  is  no  provision  for  refiling  or  renewal,  but  the  ven- 
dor's lien  or  title  preserved  by  the  first  filing,  holds  the  property 


WISCONSIN.  467 

for  one  year  after  the  last  payment  has  become  due  upon  the 
contract.     Wisconsin  Statutes,  §  2317. 

Discharge. 

There  is  no  provision  requiring  that  ordinary  conditional 
sale  contracts  shall  be  discharged  after  payment,  and  no  pen- 
alty for  failure  to  so  discharge. 


Criminal  Liability  of  Vendee. 

It  is  a  crime  to  sell  or  dispose  of  chattel  mortgaged  prop- 
erty, punishable  by  imprisonment  in  the  county  jail  for  not 
more  than  six  months  or  by  a  fine  of  not  more  than  $100.00. 
There  is,  however,  no  special  provision  of  law  making  it  a 
crime  to  sell  or  dispose  of  property  held  under  conditional  con- 
tract of  sale.     A\'isconsin  Statutes.  §  4467. 


Loss,  Who  Must  Bear. 

Where  property  has  been  delivered  under  conditional  sale 
contract  and  is  lost,  injured  or  destroyed  before  payment  in 
full,  even  though  vendee  be  not  at  fault,  still  his  obligation  to 
pay  the  balance  is  not  ended.  Osborn  v.  South  Shore  Lumber 
Co.,  91  Wis.  526,  65  N.  W.  184. 

Fixtures. 

Where  property  delivered  under  conditional  sale  contract 
is  attached  to  a  building  in  such  a  manner  that  it  may  be  re- 
moved without  material  damage  to  the  building  or  to  itself, 
the  vendor  upon  default  is  entitled  to  possession.  If,  however, 
the  property  cannot  be  removed  without  great  damage  to  the 
building  or  to  itself,  or  both,  the  vendor  cannot  take  posses- 
sion ;  but  his  remedy  would  then  be  through  an  action  in  equity 
to  enforce  a  lien  upon  the  building  for  the  balance  unpaid. 
Cooper  et  al  v.  Cleghorn  ct  al,  50  Wis.  113.  6  N.  W.  491. 


468  CONDITIONAL  SALES. 

See  also;  Kendall  Mfg.  Co.  v.  Rundle,  78  Wis.  150,  47 
N.  W.  364;  Fuller  Warren  Co.  v.  Harter,  no  Wis.  80,  85  N.  W. 
698;  Wolf  Co.  V.  Kutch,  147  Wis  209,  132  N.  W.  981. 

Landlord's  Lien. 

The  owner  of  a  building  has  no  lien  for  rent  on  personal 
property  covered  by  conditional  contract  of  sale  even  though 
the  property  is  moved  into  his  premises  before  the  contract  is 
properly  filed. 

Notes. 

The  giving  of  notes  under  a  conditional  sale  contract  does 
not  ordinarily  supersede  such  contract,  and  is  only  a  convenient 
method  of  evidencing  deferred  payments.  If,  however,  too 
great  a  part  of  the  contract  is  included  in  the  notes  it  may  be- 
come necessary  to  record  same,  and  the  notes  are  made  non- 
negotiable.     Kimball  v.  Mellon,  80  Wis.  133,  48  N.  W.  iioo. 

Election  of  Remedies. 

Where  vendor  having  two  or  more  remedies  seeks  to  en- 
force one  of  them  such  action  will  be  construed  an  election  and 
will  extinguish  the  others.  Cooper  et  al  v.  Cleghorn  et  al,  50 
Wis.  113,  6  N.  W.  491  ;  Tufts  v.  Brace,  103  Wis.  341,  79  N.  W. 
414. 

Repossession  and  Refund. 

No  cases  found. 

Railroad  Equipment. 

Conditional  sale  contracts  or  leases  with  option  to  purchase, 
railroad  or  street  railway  equipment  or  rolling  stock,  in  order 
that  same  shall  be  valid  as  to  all  third  parties,  must  be  in  writ- 


WISCONSIN.  469 

ing  (does  not  state  by  whom  signed,  but  presumably  by  all 
parties)  and  recorded  with  the  secretary  of  state  (no  prov-ision 
for  acknowledgment,  but  advise  acknowledgment  by  vendee  in 
person).  The  term  of  such  contract  cannot  be  for  more  than 
ten  years.  Each  locomotive,  car  or  other  equipment  shall  have 
marked  thereon  in  a  conspicuous  place  the  name  of  the  vendor 
or  lessor  or  the  assignee  of  such  vendor  or  lessor,  followed  by 
the  word  "owner."  or  "lessor,"  as  the  case  may  be.  ^^'is. 
Statutes,  §  1 839 A. 

Household  Furniture. 

All  contracts  for  the  sale  of  furniture  or  other  household 
effects  made  on  condition  that  the  title  thereto  shall  not  pass 
until  the  price  has  been  paid  in  full,  shall  cease  to  be  con- 
ditional sales  when  50%  of  the  purchase  price  has  been  paid, 
and  such  contract  shall  thereafter  have  all  the  elements  and 
characteristics  of  a  chattel  mortgage,  the  vendor  standing  in 
the  relation  of  a  mortgagee  and  the  vendee  in  the  relation  of 
mortgagor,  and  the  vendee  shall  have  all  the  rights  of  redemp- 
tion, and  such  property  shall  be  sold  only  as  provided  for  in 
Section  23i6x\  of  the  statutes,  and  subject  to  the  penalties 
therein  ])rescribed.     Wisconsin  Statutes  1913,  §§  1684T-53A. 

All  contracts  for  the  sale  of  furniture  or  other  household 
eflfects,  made  on  condition  that  title  thereto  shall  not  pass  until 
the  price  is  paid  in  full,  whether  in  the  form  of  a  lease  or  other- 
wise shall  be  in  writing  and  a  copy  thereof  shall  be  furnished 
the  vendee  by  the  vendor  at  the  time  of  sale ;  and  all  payments 
made  by  or  on  behalf  of  the  vendee,  and  all  charges,  whether 
in  the  nature  of  interest  or  otherwise,  as  they  accrue  shall  be 
indorsed  by  the  vendor  upon  such  copy  if  the  vendee  so  re- 
quests. If  the  vendor  fails  to  comply  with  any  of  these  pro- 
visions through  negligence,  his  rights  under  such  contract  shall 
be  suspended  while  such  default  continues ;  and  ^if  he  refuses 
or  wilfully  or  fraudulently  fails  to  comi)ly  therewith  he  shall  be 
deemed  to  have  waived  the  conditions  of  such  sale.  The  vendor 
upon  taking  possession  of  such   furniture  or  effects   for  non- 


4/0  CONDITIONAL  SALES. 

compliance  with  the  terms  of  such  contract,  shall  furnish  the 
vendee  or  other  person  in  charge  thereof  an  itemized  statement 
of  the  account,  showing  the  amount  due  thereon,  and  the  ven- 
dee may  at  any  time  within  fifteen  days  after  such  taking  re- 
deem the  property  so  taken  by  paying  to  the  vendor  the  full 
amount  of  the  price  then  unpaid  together  with  interest  and  all 
lawful  charges  and  expenses.  Said  fifteen  days  shall  not  begin 
to  run  until  such  statement  is  furnished,  provided  the  vendee 
or  other  person  in  charge  can  be  found  by  the  vendor  by  the 
exercise  of  reasonable  care  and  diligence.  Wisconsin  Statutes, 
§23i9B. 

Every  mortgage  of  personal  property  or  a  copy  thereof 
may  be  filed  in  the  ofiice  of  the  clerk  of  the  town,  city  or  vil- 
lage where  the  mortgagor  resides,  or  in  case  he  is  a  non-resi- 
dent of  the  state  then  in  the  office  of  the  clerk  of  the  town,  city 
or  village  where  the  property  mortgaged  may  be  at  the  time 
of  the  execution  of  such  mortgage ;  such  clerk  shall  indorse  on 
such  mortgage  or  copy  the  time  of  receiving  the  same  and  keep 
the  same  in  his  office  for  the  inspection  of  all  persons ;  such 
clerk  shall  also  make  the  entries  as  required  in  Sub.  Div.  lo  of 
Sec.  832 ;  provided  that  when  such  mortgage  shall  be  of  a  stock 
of  goods,  wares  and  merchandise,  or  of  the  fixtures  pertaining 
to  the  same,  the  mortgage  or  a  copy  of  it  shall  in  addition  be 
filed  in  the  office  of  the  register  of  deeds  of  the  county  in  which 
the  town,  city  or  village  may  be  situated  in  the  office  of  the 
clerk  of  which  the  mortgage  or  a  copy  thereof  may  be  filed  un- 
der this  section,  except  that  where  any  such  town,  city  or  vil- 
lage is  situated  within  two  counties  the  said  mortgage  or  copy 
shall  be  filed  in  the  office  of  the  register  of  deeds  of  either  one 
of  such  counties,  at  the  option  of  the  person  filing  the  same; 
and  the  register  of  deeds  shall  indorse  on  such  copy  filed  in  his 
office  the  time  of  receiving  the  same  and  keep  that  same  in  his 
office  for  the  inspection  of  all  persons,  and  shall  provide  and 
keep  a  book  and  make  the  entries  in  the  same  manner  as  in  the 
case  of  such  clerk,  and  shall  receive  the  same  compensation  for 
such  filing  and  entry  as  is  allowed  by  law  to  such  clerk  for  like 
services.     Mortgages  so  filed  in  the  office  of  such  clerk,  and  in 


WISCONSIN.  471 

the  proper  case  in  the  office  of  the  register  of  deeds,  shall  be 
valid  and  binding  upon  all  persons  as  if  the  property  thereby 
mortgaged  had  been,  immediately  upon  execution  of  such 
mortgage,  delivered  to  and  the  possession  thereof  retained  by 
the  mortgagee.  Wisconsin  Statutes,  §  2314,  as  amended  by 
Chap.  575,  Laws  1913. 

Every  such  mortgage  shall  cease  to  be  valid  as  against  the 
creditors  of  the  person  making  the  same,  or  subsequent  pur- 
chasers or  mortgagees  in  good  faith  after  the  expiration  of  two 
years  from  the  filing  of  the  same,  or  a  copy  thereof,  unless 
within  30  days  next  proceeding  the  expiration  of  the  two  years 
the  mortgagee,  his  agent  or  attorney  shall  make  and  annex 
to  the  instrument  or  copy  on  file  in  the  office  of  the  clerk  men- 
tioned in  Section  2314  of  the  statutes  and  in  the  proper  case 
to  the  copy  on  file  in  the  office  of  the  register  of  deeds  men- 
tioned in  the  same  section,  an  affidavit  setting  forth  the  interest 
which  the  mortgagee  has  by  virtue  of  such  mortgage  in  the 
property  therein  mentioned,  upon  which  affidavit  the  clerk, 
and  in  a  proper  case  the  register  of  deeds  shall  indorse  the  time 
when  the  same  was  filed  in  his  office.  The  register  of  deeds 
shall  make  the  same  entries  of  the  filing  of  such  affidavits,  as 
are  required  by  law  of  such  clerk,  and  receive  for  such  filin_^ 
and  entering  the  same  compensation  allowed  by  law  to  such 
clerks  for  like  services.     Wisconsin  Statutes,  §  2315. 

The  efifect  of  such  affidavit  shall  not  continue  beyond  two 
years  from  the  time  when  such  mortgage  would  otherwise 
cease  to  be  valid  as  against  subsequent  purchasers  or  mortga- 
gees in  good  faith  ;  but  within  thirty  days  next  preceeding  the 
time  when  such  mortgage  would  otherwise  cease  to  be  valid 
as  aforesaid  a  similar  affidavit  may  be  filed  and  annexed  as 
provided  in  the  preceeding  section  and  with  like  efTect.  Wis- 
consin Statutes,  §  2316. 

I.  No  sale  of  any  personal  projierty  taken  by  virtue  of 
any  chattel  mortgage,  lease  or  other  instrument  intended  as  se- 
curity except  by  consent  of  the  mortgagor,  his  legal  representa- 
tives or  assigns  shall  be  made  before  the  expiration  of  five  days 


472  CONDITIONAL  SALES 

from  the  time  when  the  same  was  actually  taken,  nor  shall  any 
property  during  such  time  be  removed  from  the  county  where 
it  was  situated  when  taken ;  and  during  such  period  such  prop- 
erty shall  be  subject  to  redemption  by  payment  of  the  mort- 
gage debt,  and  the  actual  and  necessary  costs  and  expenses 
of  taking  and  keeping  it  incurred  at  the  time  of  making  re- 
demption. 

2.  The  mortgagor,  his  wife,  his  assignee  or  as^ignees, 
may  at  any  time  after  sale  within  five  days  redeem  the  prop- 
erty sold  at  the  chattel  mortgage  sale  at  the  actual  amount  at 
which  same  was  sold,  plus  any  expense  necessary  for  the  keej)- 
ing  of  said  property  subsequent  to  the  sale  and  said  property 
shall  not  be  removed  from  the  town  in  which  said  sale  took 
place  before  the  right  of  redemption  expires.  Any  person  ag- 
grieved by  a  violation  of  any  provision  of  this  section  may  re- 
cover of  the  person  who  violated  same  in  addition  to  his  actual 
damages  $25.00  as  liquidated  damages.  If  any  such  property 
is  sold  at  private  sale  without  public  notice  or  is  sold  within 
the  jjeriod  herein  limited,  without  such  consent  the  mortgage 
debt  shall  be  deemed  paid  and  the  mortgage  securing  same  be 
deemed  cancelled.  Nothing  in  this  section  shall  be  construed 
to  limit  the  eflfect  of  Sec.  2319B.     Wisconsin  Statutes,  §  2316A. 

\\' henever  any  property  covered  by  a  chattel  mortgage,  or 
instrument  intended  to  have  the  efifect  of  a  chattel  mortgage, 
shall  be  taken  and  sold  under  and  by  virtue  of  such  mortgage 
pursuant  to  the  power  of  sale  contained  therein,  the  owner  of 
such  mortgage  or  the  person  acting  as  the  agent  of  such  owner 
and  conducting  such  sale,  shall  within  ten  days  after  the  sale 
of  any  property  covered  by  such  mortgage  make  and  file  an 
affidavit  setting  forth  the  date  of  such  sale,  a  description  of 
the  property  sold,  the  sum  claimed  to  be  due  on  the  indebted- 
ness secured  by  such  mortgage,  the  amount  realized  on  such 
sale,  a  statement  in  detail  of  the  expenses  of  such  sale  includ- 
ing the  cost  of  taking  and  keeping  the  property  pending  the 
sale.  A  cop3'  of  the  notice  of  sale  if  any  shall  be  attached  to 
said   affidavit  and  be  deemed  a  part  thereof.     Such   affidavit 


WISCONSIN.  473 

shall  be  filed  in  the  office  of  the  town  or  citv  or  \-illage  clerk, 
where  the  mortgage  under  which  such  sale  is  had  is  filed,  or 
if  such  mortgage  be  not  so  filed  then  in  the  office  of  the  clerk 
of  the  town,  city  or  \-illage  where  said  sale  was  held. 

Any  person  violating-  the  provisions  of  this  section  shall 
be  liable  to  the  person  personally  liable  for  the  indebtedness 
in  which  case  such  person  shall  be  entitled  to  recover  in  ad- 
dition to  his  actual  damages  the  sum  of  S25.00  licpiidated  dam- 
ages. In  case  of  the  failure  of  the  owner  of  any  such  mort- 
gage or  his  agent  conducting  such  sale  to  comply  with  the  pro- 
visions of  this  section  within  the  time  herein  limited,  the  debt 
secured  by  such  mortgage  shall  be  deemed  fully  satisfied  and 
the  mortgage  cancelled.     Wisconsin  Statutes.  §  2316C. 

No  public  sale  of  any  personal  property  taken  by  virtue 
of  any  chattel  mortgage  lease  or  other  instrument  intended  as 
security  except  by  consent  of  the  mortgagor,  his  legal  repre- 
sentatives or  assigns,  shall  be  made  unless  at  least  five  days 
l^efore  such  sale  the  mortgagee  or  his  agent  shall  serve  upon 
the  owner  of  the  e(|uity  of  redemption  in  such  ])roperty  so 
taken,  if  he  resides  within  the  county,  a  written  notice  of  such 
proposed  sale,  served  either  as  a  circuit  court  summons  is 
served  or  ser\ed  by  mailing  to  hitu  by  registered  mail.  At  any 
time  prior  to  48  hours  in  advance  of  such  sale  the  mortgagor 
may  serve  upc^n  the  mortgagee  or  his  agent  in  charge  of  the 
property  notice  that  he  elects  to  have  such  sale  conducted  by 
an  auctioneer  or  other  competent  person,  not  interested  in  such 
sale  or  mortgaged  property,  who  shall  reside  within  the  city  or 
village  where  such  property  is  located,  to  be  named  in  such  no- 
tice, and  thereafter  no  other  person  shall  conduct  such  sale, 
provided  however,  that  if  such  auctioneer  or  other  person 
so  named  shall  not  attend  and  conduct  the  sale  any  other 
person  may  sell  the  mortgaged  property  at  the  request 
of  the  owner  of  the  mortgage,  lease  or  other  instrument 
intended  as  security.  Such  auctioneer  or  other  person  shall  be 
comi)ensated  wholly  b\-  the  mortgagor  and  shall  have  no 
claim  against  the  mortgagee  or  against    the    proceeds    of    the 


474  CONDITIONAL  SALES 

property  sold,  except  that  portion  of  the  proceeds  which  be- 
longs to  the  mortgagor.  The  auctioneer  or  other  person  named 
in  such  last  mentioned  notice  shall  conduct  such  sale  but  shall 
forthwith  turn  over  to  the  mortgagee  or  his  agent  all  the  pro- 
ceeds of  such  sale  to  be  accounted  for  and  disposed  of  as  pro- 
vided by  law. 

3.  Any  person  aggrieved  by  a  violation  of  any  provision 
of  this  section  may  recover  of  the  person  who  violated  the  same 
in  addition  to  his  actual  damages  $25.00  as  liquidated  damages. 
A\'isconsin  Statutes,  §  2316M. 

Where  a  chattel  mortgage  shall  be  paid  and  the  other  con- 
ditions thereof  fully  performed  the  mortgagee,  his  representa- 
tive or  assignee  shall  on  demand  give  the  mortgagor  a  certifi- 
cate or  certificates,  cause  the  same  to  be  filed  in  the  clerk's  of- 
fice where  the  mortgage,  and  in  the  proper  case  in  the  register 
of  deeds  office,  where  the  copy  thereof  to  which  the  certificate 
or  certificates  relate,  were  filed  and  remove  said  mortgage  and 
in  the  proper  case  the  copies  thereof  from  such  ofiice  or  offices, 
town,  village  or  city  clerks  and  registers  of  deeds  shall  receive 
and  file  such  certificates  and  may  charge  10  cents  for  so  doing. 
Wisconsin  Statutes,  §  2317A. 


WYOMING. 


Legal  Status  of  Conditional  Sale  Contracts. 

Conditional  sale  contracts  are  provided  for  by  statute  law 
in  this  state.  Revised  Statutes,  §  2837.  Studebaker  Bros.  Co.  v. 
Mau,  13  Wy.  358,  80  Pac.  151  ;  Re-hearing  with  sarne  decision, 
14  ^^'y.  68,  82  Pac.  2. 


How  Executed. 

They  must  be  in  writing  signed  by  the  vendee  but  do  not 
need  to  be  signed  by  the  vendor,  the  acceptance  of  such  a  con- 
tract on  the  part  of  the  vendor  by  acting  upon  it  or  shipping 
the  goods  being  sufficient  to  make  a  binding  contract  as  be- 
tween the  parties  thereto.  There  is,  however,  no  objection  to 
the  contract  being  formally  signed  and  accepted  by  the  vendor. 

Acknowledgment  or  Proof. 

Such  a  contract  is  valid  as  between  the  parties  thereto  with- 
out acknowledgment  or  proof  or  filing  or  recording,  but  in  or- 
der to  make  it  valid  and  to  hold  title  as  against  any  purchaser 
from  or  judgment  creditor  of  the  vendee  in  possession,  filing 
must  be  made.  Tt  is  not  necessary  that  the  instrument  be  ac- 
knowledged by  the  vendee  or  vendor,  nor  that  it  be  signed  or 
proven  by  a  sul^scribing  witness  in  order  to  be  so  filed.  Revised 
Statutes,  §  2837. 

Recording  or  Filing. 

There  is  no  provisions  in  this  state  for  recording  con- 
ditional contracts  of  sale.    There  must,  however,  be  a  filing  in 

475 


476  CONDITIONAL  SALES. 

order  to  hold  title  as  against  any  purchaser  from  or  judgment 
creditor  of  vendee  in  possession.  A  true  copy  of  the  original 
may  be  used,  and  should  be  filed  with  the  county  clerk  of  the 
county  where  the  property  is  located.  There  is  no  specified 
time  within  which  such  filing  must  be  made,  but  in  order  to 
avoid  all  question  the  copy  should  be  filed  before  the  vendee 
gets  possession  of  the  property.  There  must  be  attached  to, 
such  copy,  when  filed,  an  affidavit  of  the  vendor,  his  agent  or 
attorney,  which  shall  state  the  names  of  said  vendor  and  ven- 
dee, or  lessor  and  lessee,  and  give  a  description  of  the  property 
with  the  full  and  true  interest  of  the  vendor  or  lessor  therein. 
Revised  Statutes,  §  2837.  Grand  Rapids  Furniture  Co.  v.  Grand 
Hotel  etc.  et  al,  11  Wy.  128,  70  Pac.  838. 


Recording  Fee. 

The  fee  for  filing  a  conditional   sale  contract  is  25  cents. 
Revised  Statutes,  §  2838. 


Re-Recording  or  Renewal. 

Conditional  sale  contracts  must  be  renewed  by  filing 
within  30  days  immediately  preceding  the  end  of  one  year  from 
the  date  of  sale  or  transfer,  a  copy  of  such  contract,  to  which 
must  be  attached  an  affidavit  similar  to  that  employed  when  the 
original  filing  was  made.  A  like  renewal  must  be  made  at  the 
end  of  each  year  until  the  contract  is  paid  in  full.  Fee  for  re- 
filing 25  cents.    Revised  Statutes,  §§  2837-38. 


Discharge. 

There  is  no  provision  for  discharge  of  conditional  con- 
tracts of  sale  after  payment  and  no  express  penalty  for  failure 
to  discharge.  It  is  always  advisable,  however,  upon  request 
of  the  vendee  or  any  other  proper  party  to  discharge  such  a 
contract  from  record  after  payment  in  full  has  been  received. 


WYOMING.  477 

Criminal  Liability  of  Vendee. 

None. 

Loss.  Who  Must  Bear. 

No  cases  found. 

Fixtures. 

There  has  been  no  determination  in  this  state  as  to  the 
rights  of  a  conditional  vendor  where  property  held  under  con- 
ditional contract  of  sale  has  been  attached  to  a  building. 

Landlord's  Lien. 

There  is  no  provision  of  law  giving  a  landlord  a  lien  for 
rent  upon  personal  property  located  on  his  premises.  He  cer- 
tainly could  have  none  where  a  conditional  contract  of  sale  cov- 
ering such  property  was  properly  filed  before  the  property  was 
placed  thereon. 

Notes. 

No  cases  found. 

Election  of  Remedies. 

No  cases  found. 

Repossession  and  Refund. 

No  cases  found. 

Railroad  Equipment. 

Conditional  contracts  of  sale  or  leases  with  option  to  pur- 
chase covering  railroad  or  street  railway  equipment  or  rolling 
stock,  must  be  in  writing,  signed  by  all  parties  thereto,  and  in 


478  CONDITIONAL  SALES 

order  that  same  shall  be  valid  as  against  subsequent  judgment 
creditors  or  subsequent  bona  fide  purchasers  for  value  and 
without  notice,  the  contract  must  be  acknowledged  by  vendee, 
or  lessee  or  be  proven  as  deeds  are  required  to  be  proven ;  after 
which  the  original  must  be  filed  for  record  with  the  secretary 
of  state.  Each  locomotive,  engine  or  car  so  sold,  leased  or 
hired,  shall  have  the  name  of  the  vendor,  lessor,  or  bailor 
plainly  marked  on  each  side  thereof,  followed  by  the  word 
"owner,"  or  "lessor"  or  "bailor"  as  the  case  may  be. 

Upon  payment  in  full  a  declaration  in  writing  to  that  efifect 
shall  be  made  by  the  vendor,  lessor,  or  bailor,  or  his  or  its  as- 
signee, which  declaration  may  be  made  on  the  margin  of  the 
record  duly  attested ;  or  it  may  be  made  by  a  separate  instru- 
ment acknowledged  by  the  vendor,  lessor,  or  bailor,  or  his  or 
its  assignee,  and  recorded  as  aforesaid. 

Fees  for  recording  a  contract  $5.00,  for  recording  a  declara- 
tion of  discharge  $2.00,  and  for  noting  a  discharge  upon  the 
margin  of  the  record  $1.00.     Revised  Statutes,  §§  2839-40. 

Forms. 

AFFIDAVIT  WHERE  VENDOR  IS  NOT  A 
CORPORATION. 

State  of  Wyoming,    ) 
County  OF  Laramie.  \ 

Henry  Martin,  being  duly  sworn,  says  he  is  the  lessor  (i) 
and  Richard  Markham  of  Cheyenne,  Wyoming,  is  the  lessee 
of  the  safe  described  in  copy  of  contract  hereto  attached,  and 
the  full  and  true  interest  of  said  lessor  in  said  safe  is  that  of 
owner. 

Henry  Martin. 
Subscribed  and  sworn  to  before  me 
this  I2th  day  of  July,  1917. 

James  P.  Fitzgerald, 
Notary  Public  in  and  for . 

I.  Affidavit  may  be  made  by  vendor's  agent  or  attorney. 


WYOMING.  479 

AFFIDAVIT  WHERE  VENDOR  IS  A  CORPORATION. 

State  of  Wyoming,      i 
County  of  Converse,  i 

John  Richardson,  being  duly  sworn,  says  he  is  the  attor- 
ney (2)  for  Cary  Safe  ompany,  a  corporation ;  that  said  Cary 
Safe  Company  is  the  lessor,  and  Henry  Harding  of  Douglas, 
Wyoming,  the  lessee  of  the  safe  described  in  copy  of  contract 
attached  hereto,  and  the  full  and  true  interest  of  said  lessor  in 
said  safe  is  that  of  owner. 

John  Richardson. 

Subscribed  and  sworn  to  before  me 
this  I2th  day  of  July,  1917. 

Herbert  J.  Miluurn, 
Notary  Public  in  and  for . 


Officers  Before  Whom  Acknozvledgnients  May  Be  Taken. 

Within  the  State.  Any  judge  or  clerk  of  a  court  of  record  ; 
a  United  States  court  commissioner;  county  clerks;  justices  of 
the  peace ;  notaries  public. 

Without  the  State  but  Within  the  United  States.  Commis- 
sioners of  Wyoming;  an}'  clerk  of  a  court  of  record;  also  any 
other  officer  authorized  by  law  to  take  acknowledgments  at  the 
place  where  such  acknowledgment  is  to  be  taken,  but  the  offi- 
cial position,  signature  and  regularity  of  such  official  must  be 
certified  by  a  clerk  of  a  court  of  record,  or  a  county  clerk  of  the 
same  place  under  seal. 


2.  Affidavit  may  be  made  by  any  duly  authorized  officer 
attorney  or  agent  of  the  corporation. 


480  CONDITIONAL  S:ALES    ( WYOMING). 


PART  V. 
FORMS. 

PRACTICAL  SUGGESTIONS. 

Form  of  Contract. 

It  is  essential  in  almost  every  case  that  a  conditional  con- 
tract of  sale  be  in  writing.  It  is  also  desirable  that  such  a  con- 
tract should  be  a  clear  and  concise  statement  of  the  agreement 
between  the  parties  with  no  unnecessary  verbiage.  A  lengthy 
contract  not  only  requires  more  time  for  preparation,  but  in 
those  states  where  the  contract  must  be  recorded,  increases  the 
cost  of  recording  materially.  Exceptional  cases  will  arise,  as 
for  example,  where  specifications  for  construction  work  are  in- 
cluded, in  which  the  contract  must  of  necessity  be  voluminous. 
Experience  has  shown,  however,  that  five  hundred  words  or 
even  less  are  sufficient  to  cover  any  ordinary  transaction. 

Unilateral  Contracts. 

A  unilateral  or  one-party  contract  is  an  offer  or  proposed 
contract  which  has  been  signed  by  one  of  the  parties,  but  which 
has  not  been  signed  or  formally  accepted  by  the  other  party. 
This  second  party  may  then,  at  his  option,  either  complete  the 
contract  by  acceptance,  or  allow  it  to  lapse  by  non-acceptance. 
Such  contracts  are  common,  as  for  instance,  an  order  for  goods 
which  is  signed  by  the  vendee  but  is  not  ordinarily  signed  or 
formally  accepted  by  the  vendor. 

481 


482  CONDITIONAL  SALES 

In  nearly  all  the  states  contracts  of  this  kind  are  held  to 
be  valid  without  any  formal  written  acceptance  on  the  part  of 
the  vendor.  Even  in  those  states  where,  by  statute  law  or  by 
court  decision,  a  different  rule  prevails,  such  an  order  signed 
by  the  vendee  alone,  is  at  once  transformed  by  the  mere  in- 
dorsement of  the  word  "Accepted"  followed  by  the  signature 
of  the  vendor  into  an  ordinary  two-party  contract  of  a  legal  and 
binding  nature.  In  most  states,  however,  an  unwritten  accept- 
ance of  the  order  by  the  vendor,  shown  by  his  acting  upon  it, 
is  held  to  be  sufficient  to  complete  the  contract,  and  it  is  then 
binding  upon  both  parties  with  the  same  force  and  efTect  as  if  it 
had  been  signed  by  both. 

When  goods  are  sold  on  conditional  sale  the  unilateral  con- 
tract is  commonly  employed,  usually  in  the  form  of  an  ofTer, 
or  order,  signed  by  the  prospective  vendee  and  directed  to  the 
vendor.  This  form  of  contract,  or  order,  is  desirable  because 
of  the  fact  that  it  is  in  no  way  binding  upon  the  prospective 
vendor  until  accepted  by  him. 

The  advantage  of  such  a  condition  is  obvious.  Only  in  rare 
instances  can  it  be  considered  safe  to  clothe  the  salesman  with 
authority  to  actually  bind  his  principal,  when  credit  is  to  be 
given  the  vendee.  Such  authority  is  better  vested,  so  far  as 
possible,  in  the  credit  department  of  the  vendor  where  orders 
may  be  acted  upon  with  calm  and  intelligent  consideration.  The 
unilateral  contract  permits  this  to  be  done.  If  the  investiga- 
tions of  the  credit  department  prove  the  sale  to  be  desirable, 
the  contract  may  then  be  accepted  and  made  binding  on  all 
parties.  If,  however,  investigation  shows  that  the  proposed 
sale  is  not  safe  or  is  not  desirable,  the  contract  may  be  rejected 
without  thereby  involving  the  vendor  in  a  liability  for  damages. 

In  any  such  case,  if  an  order  is  approved,  its  acceptance 
may  be  evidenced  either  by  a  writing  sent  to  the  vendee,  by 
a  formal  acceptance  endorsed  on  the  order,  or  by  action  thereon, 
as  for  instance,  ordering  material  required  for  the  manufacture 
of  the  goods,  or  actually  starting  work  upon  their  construction 
or  manufacture,  or  if  they  are  ready  for  deHvery,  the  actual 


PRACTICAL    SUGGESTIONS.  483 

shipment  of  the  goods.  It  is  however,  always  both  prudent  and 
courteous  to  acknowledge  receipt  of  the  order  at  the  earliest 
possible  moment,  stating  either  the  fact  of  its  acceptance  or  re- 
jection. 

The  one  objection  to  the  unilateral  or  order  contract  as 
usually  employed  in  conditional  sales,  is  the  fact  that  it  is  not 
immediately  binding  upon  the  vendee ;  but  may  be  cancelled 
or  countermanded  by  him  at  any  time  up  to  its  actual  accept- 
ance by  the  vendor.  Occasionally  orders  are  so  cancelled  and 
this  would  not  be  possible  if  the  salesman  were  authorized  to 
accept  the  order  and  did  so  accept  it  at  the  time  it  was  given. 
On  the  other  hand,  as  already  intimated,  the  salesman  is  not 
usually  competent  to  judge  of  the  credit  conditions  under 
which  an  order  is  given,  or  to  conduct  an  adequate  investiga- 
tion of  the  vendee's  standing,  and  in  practice  the  losses  in- 
curred by  reason  of  cancellations,  are  far  more  than  offset 
through  the  losses  avoided  by  the  rejection  of  orders  which  are 
shown  under  investigation  to  be  doubtful  or  worthless. 


Acknowledgment  or  Proof. 

An  order  having  been  accepted,  it  becomes  necessary  in 
many  states  to  have  this  completed  contract,  or  a  copy  or 
memorandum  thereof,  filed  or  recorded  with  the  proper  official. 
Usually  before  such  a  contract  will  be  filed  or  recorded,  it  must 
be  acknowledged  or  proven  in  the  manner  provided  by  statute. 
In  some  few  states  this  proof  must  be  in  the  form  of  an  ac- 
knowledgment by  the  vendee.  Usually,  however,  if  the  con- 
tract is  signed  by  the  vendee  it  may  be  proven  by  the  oath  of  a 
subscribing  witness,  and  will  then  be  received  for  filing  or  re- 
cording without  the  vendee's  acknowledgment.  As  it  is  almost 
always  difficult  to  induce  the  vendee  to  acknowledge  a  con- 
ditional contract  of  sale,  this  proof  by  a  subscribing  witness  is 
the  preferable  alternative  and  is,  wherever  allowed,  the  usual 
method  of  proof.  Here  comes  in  another  advantage  to  the  ven- 
dor in  the  use  of  the  usual  signed  order  or  unilateral  contract. 


484  CONDITIONAL  SALES 

The  salesman  who  takes  such  an  order  does  not  execute  the 
contract  on  behalf  of  the  vendor  and  may  therefore  attach  his 
name  to  the  contract  as  a  subscribing  witness.  If  he  so  acts  he 
may  at  any  time  thereafter  prove  the  contract  by  his  oath, 
thereby  completing  the  necessary  formalities  and  enabling  the 
filing  or  recording  of  the  contract  without  recourse  to,  and  even 
without  the  knowledge  of  the  vendee. 

Time  of  Filing  or  Recording. 

In  a  few  states  (indicated  in  Part  IV  of  the  present  vol- 
ume) a  contract  of  conditional  sale  should  be  filed  or  recorded 
immediately  after  the  order  has  been  accepted  and  before  deliv- 
ery of  the  goods.  Outside  of  these  few  states,  however,  the 
contract  need  not  ordinarily  be  filed  or  recorded  until  shipment 
has  been  made,  and  in  practice  the  shipment  itself  is  usually  re- 
lied upon  to  indicate  the  date  when  the  contract  must  be  sent 
for  filing  or  recording. 

Procedure  for  Filing  or  Recording. 

The  records,  or  a  memorandum  of  the  shipments  made 
each  day,  if  turned  over  to  the  person  having  charge  of  the  con- 
ditional contracts  of  sale,  will  serve  as  a  convenient  means  of 
informing  him  as  to  the  contracts  which  must  then  be  filed  or 
recorded. 

If  the  original  contract  is  sent  for  filing  or  recording,  a 
sworn  copy  should  replace  it  in  the  files  of  the  vendor,  and  the 
date  when  the  original  was  sent,  and  where  and  to  whom  should 
be  endorsed  upon  this  copy.  If  a  copy  or  a  memorandum  is 
sent,  a  like  endorsement  should  be  made  upon  or  be  attached 
to  the  original  contract,  which  is  kept  in  the  files  of  the  vendor. 

Where  order  books  or  other  similar  records  are  kept,  a  no- 
tation to  the  same  effect  made  on  these  books  against  the  par- 
ticular order,  will  be  found  a  convenience.  A  list  of  the  con- 
tracts sent  for  filing  or  recording  should  also  be  kept  and  should 


PRACTICAL  SUGGESTIONS.  485 

show  the  name  of  the  officer  to  whom  sent  and  the  place  and 
date  of  sending. 

A  form  letter  to  accompany  contracts  when  sent  to  the  fil- 
ing or  recording  officer,  may  easily  be  arranged  so  as  to  be  suit- 
able for  all  cases,  and  when  required  is  prepared  for  use  by 
simply  filling  in  a  few  blanks.  The  letter  should,  as  a  matter 
of  course,  request  the  officer  addressed  to  advise  the  sender  of 
the  receipt  of  the  contract  and  the  date  on  which  it  is  filed  or 
recorded  in  his  office.  A  form  letter  of  this  kind  is  given  on  a 
later  page  of  the  present  volume. 

When  notice  is  received  that  a  contract  has  been  filed  or  re- 
corded, this  information  should  be  noted  against  the  particular 
contract  on  the  list  of  contracts  sent  for  filing  or  recording. 
If  no  reply  to  the  form  letter  is  received  within  a  reasonable 
time,  say  ten  or  fifteen  days,  the  fact  can  easily  be  ascertained 
by  reference  to  this  same  list.  The  officer  to  whom  the  con- 
tract was  sent  may  then  be  written  again,  and  the  matter  be 
followed  up  until  brought  to  a  satisfactory  conclusion. 

Proper  Filing  or  Recording  Officials. 

The  proper  filing  or  recording  official  for  any  particular 
state  may  be  determined  by  reference  to  Part  IV  of  the  present 
volume.  The  county  wherein  the  vendee  resides,  which  is 
usually  the  place  of  filing,  may  be  determined  by  reference  to 
Dun's  or  Bradstreet's  publication.  Or,  if  the  county  in  which 
the  property  is  located  after  delivery  is  the  place  of  filing,  the 
Dun  or  Bradstreet  publication  may  again  be  conveniently 
used,  as  the  town  to  which  shipment  was  made  can  easily  be 
found  therein  and  in  connection  therewith  the  county  in  which 
such  town  is  located. 

If  the  filing  or  recording  is  to  be  made  by  an  officer  of  the 
county  or  a  clerk  of  a  county  court,  the  letter  may  be  directed 
to  such  official  at  the  county  seat.  When  it  must  be  made  in  a 
city  clerk's  office,  the  letter  may  be  directed  to  such  official  in 
his  proper  city.     The  greatest  difficulty  is  encountered  where 


486  CONDITIONAL  SALES 

the  filing  or  recording  official  is  a  village,  town  or  township 
clerk.  These  officials  are  changed  frequently,  their  address  is 
not  always  certain,  and  no  publication  known  to  the  author 
gives  a  list  of  them.  It  will  be  found,  however,  that  a  letter 
directed  to  the  village  or  town  clerk  at  the  place  where  the  par- 
ticular instrument  must  be  filed  or  recorded,  will  almost  in- 
variably reach  the  proper  official. 

Fees. 

Postage  stamps  may  be  sent  in  payment  of  filing  or  re- 
cording fees  when  these  latter  are  not  in  excess  of  twenty-five 
cents.  Larger  amounts  if  remitted  in  this  form  are,  however, 
liable  to  be  refused  and  are  better  sent  in  currency  by  regis- 
tered mail,  or  perhaps  more  safely,  by  means  of  express  or  post 
office  orders  or  drafts.  Checks  will  sometimes  be  received 
without  question  by  the  filing  or  recording  officials,  but  not  in- 
frequently they  are  looked  upon  with  disfavor.  Also  they  are 
usually  subject  to  collection  charges,  which,  if  not  included  in 
the  amount  of  the  check,  give  rise  to  dissatisfaction,  a  request 
for  remittance  of  these  charges,  or  a  refusal  of  the  check  itself. 
Under  these  conditions  checks  are  not  safely  employed  unless 
it  is  known  that  they  will  be  accepted  by  the  filing  or  recording 
officials,  or  unless  the  delay  incident  to  their  return  or  to  a 
correspondence,  in  regard  to  them  is  not  objectionable. 


CONDITIONAL  CONTRACTS. 


The  forms  of  conditional  contracts  which  follow  have  been 
found  effective  and  satisfactory  in  actual  use.  They  may  in 
many  cases  be  used  in  the  shape  here  presented.  In  other  cases 
they  will  serve  as  suggestions  for  the  drafting  of  instruments 
suited  to  the  particular  conditions  under  which  they  are  to  be 
employed. 

It  will  be  recognized  that  the  main  purpose  of  a  conditional 
sale  contract  is  to  protect  the  vendor.  To  do  this  its  terms  must 
of  necessity  be  strongly  in  his  favor,  but  the  protective  clauses 
should  not  occupy  too  prominent  a  place  in  the  instrument  or 
they  may  strike  the  vendee  as  harsh.  For  this  reason  the  word- 
ing and  arrangement  in  some  of  the  following  forms  intention- 
ally departs  from  the  usual  contract  construction,  and  especially 
is  this  true  in  the  unilateral  or  one  party  contracts. 

When  conditional  contracts  are  employed  they  are  ordinar- 
ily used  in  such  numbers  as  to  necessitate  a  printed  form.  In 
the  contract  forms  which  follow  the  variable  matter  has  been 
reduced  to  a  minimum  so  that  the  form  when  printed  will  have 
but  a  small  number  of  blanks  to  be  filled  in  at  the  time  the  in- 
strument is  used.  The  matter  is  merely  one  of  convenience  but 
will  be  appreciated  by  the  salesman  who  must  prepare  the  form 
for  signature. 

CONDITIONAL  CONTR.XCT. 


Ithaca,  N.  Y.,  July  12,  1917. 
To  Cayuga  Manufacturing  Co., 
Auburn,   New   York. 
Please    send   as   soon   as   convenient   one    No.    25    "FIRE- 
PROOF" SAFE,  approximate  size  inside,  25  inches  high,  15 

487 


488  CONDITIONAL  SALES 

inches  wide  and  11  inches  deep,  as  per  your  illustrated  cata- 
logue, or  plan  on  back  hereof  if  any.  Necessary  alterations  al- 
lowed. Ship  via  Lehigh  R.  R.  from  Auburn,  New  York,  and 
rent  same  to  undersigned  on  the  following  terms: 

Safe  to  be  delivered  f.  o.  b.  cars  at  Auburn,  New  York,  and 
the  rental  thereof  to  be  $85.00  payable  $25.00  in  cash  on  arrival 
of  safe  and  the  balance  in  four  equal  installments  at  two,  four, 
six  and  eight  months  from  date  of  invoice,  these  deferred  pay- 
ments to  be  evidenced  by  rental  notes,  bearing  interest  at  the 
rate  of  6%  from  invoice  date,  which  shall  also  be  the  date  of 
said  notes. 

Said  rental  notes  are  to  be  sent  you  as  soon  as  invoice  for 
sale  is  received  and  if  they  have  not  been  forwarded  at  the  ex- 
piration of  twenty-five  days  from  date  of  invoice,  the  entire 
rental  of  said  safe  as  above  set  forth  shall  be  come  due  and  pay- 
able, and  I  agree  to  accept  and  pay  your  draft  for  the  said 
amount  on  presentation. 

When  the  full  amount  of  $85.00  with  interest  as  provided 
is  paid,  you  are  to  give  me  a  bill  of  sale  for  said  safe,  and  same 
is  to  become  my  property,  but  is  it  agreed  that  the  title  to  said 
safe  shall  not  pass  until  said  payments  have  been  made  in  full, 
but  shall  remain  with  you,  and  on  default  of  payment  of  said 
rent,  or  of  any  part  thereof,  you  or  your  agent  may  take  pos- 
session of  and  remove  said  safe  without  legal  process  and  all 
sums  then  paid  shall  be  retained  by  you  as  rental  for  said  safe 
while  it  was  in  my  possession,  and  all  exemptions  and  all  claims 
for  damages  are  hereby  waived. 

I  agree  to  notify  you  of  any  seizure  of  said  safe  or  of  any 
bankruptcy  or  settlement  with  creditors  on  my  part,  and  in 
case  the  said  safe  shall  be  seized  it  is  agreed  that  all  installments 
of  rent  previously  paid  shall  be  forfeited. 

Nothing  but  shipment,  or  delivery  or  actual  acceptance  in 
writing  shall  constitute  your  acceptance  of  this  contract  and 
same  shall  not  be  countermanded,  cancelled  or  annulled  bv  me. 


CONDITIONAL  CONTRACTS.  489 

I  also  hereby  expressly  state  and  agree  that  the  foregoing 
embodies  all  claims  made  between  us  in  any  way  in  regard  to 
the  said  safe  and  that  all  claims  of  verbal  or  other  agreements 
of  any  nature  not  embodied  in  this  contract  are  hereby  waived. 

The  receipt  of  a  duplicate  of  this  present  contract  is  hereby 
acknowledged. 

Truly  yours, 

Morris  M.  Wilson. 
$85.00. 
Agents  Not  Authorized  to  Make  Collections. 


CONDITIONAL  CONTRACT. 


Columbus,  Ohio,  July  12,  1917. 

Howard  Walton  Safe  Co., 

New  York  City,  New  York. 

Please  ship,  F.  O.  B.  New  York  City,  to  Edward  M.  Shel- 
don, Columbus,  Ohio,  by  freight  as  soon  as  possible,  one  No. 
5  iron  safe,  specifications  as  per  your  catalogue. 

On  fulfillment  of  the  above,  the  undersigned  agrees  to  pay 
you  the  sum  of  Sixty-five  Dollars  ($65.00)  as  follow^s :  Five 
Dollars  ($5.00)  cash  on  arrival ;  balance  by  monthly  payments 
of  Five  Dollars  ($5.00)  each  from  date  of  invoice. 

Upon  delivery  of  safe  I  agree  to  pay  sight  draft  for  Five 
Dollars  ($5.00)  and  to  execute  and  deliver  to  you  twelve  notes, 
for  Five  Dollars  ($5.00)  each,  to  cover  the  balance,  said  notes 
to  bear  date  of  invoice  and  one  to  be  payable  each  month  there- 
after until  all  are  paid. 

.Should  there  be  any  failure  to  pay  such  draft  on  presenta- 
tion or  to  execute  and  pay  any  note  or  notes  for  deferred  pay- 
ments as  provided  herein,  it  is  agreed  that  the  full  amotmt  cov- 
ered by  this  contract  shall  at  once  become  due  and  payable. 


490  CONDITIONAL    SALES 

It  is  especially  agreed  that  this  order  shall  not  be  counter- 
manded and  it  is  further  agreed  that  the  title  to  said  safe  shall 
not  pass  until  the  purchase  price  thereof  or  any  judgment  for 
the  same  is  paid  in  full  but  that  said  safe  shall  remain  your 
property  until  that  time. 

In  default  of  any  payment  you  or  your  agents  may  take 
possession  of  and  remove  said  safe  without  legal  process,  and 
in  such  case  all  payments  heretofore  made  by  me  under  this 
contract  shall  be  deemed  and  considered  as  having  been  made 
for  the  use  of  said  safe  during  the  time  the  same  remained  in  my 
possession  and  shall  be  retained  and  kept  by  your  said  com- 
pany as  such  payment. 

The  signing  and  delivery  of  said  promissory  notes  shall  not 
be  deemed  nor  considered  a  payment  nor  a  waiver  of  any  term, 
provision  or  condition  of  this  contract. 

It  is  agreed  that  the  purchaser  of  said  safe  shall  not  re- 
move same  from  the  premises  at  235  Congress  Street,  Columbus, 
Ohio,  without  first  having  obtained  the  written  consent  of  the 
said  Howard  Walton  Safe  Company,  nor  use  said  safe  so  as  to 
injure  it  or  impair  its  use,  other  than  may  result  from  ordinary 
wear. 

This  safe  is  not  placed  on  trial  or  approval,  and  no  agent 
is  authorized  to  make  or  bind  the  said  Howard  Walton  Safe 
Company  by  any  agreement,  statement  or  representation  of 
any  kind  other  than  contained  in  this  contract.  This  contract 
covers  all  agreements  between  the  parties  hereto  and  receipt 
of  duplicate  is  hereby  acknowledged. 

Edward  M.  Sheldon. 


Wynn  J.  Condon, 
Witness. 


CONDITIONAL  CONTRACTS.  491 

CONDITIONAL  CONTRACT. 


Buffalo,  New  York,  July  12,  1917. 

Howard  Walton  Safe  Company, 

New  York  City,  New  York. 

Please  ship  to  undersigned  at  Buffalo,  New  York,  as  soon 
as  possible,  one  iron  safe,  approximate  size  inside,  35  inches 
high,  25  inches  wide  and  20  inches  deep. 

In  consideration  of  same  the  undersigned  agrees  to  pay  you 
$150.00,  being  the  price  of  said  safe  F.  O.  B.  Buffalo,  New 
York,  on  the  following  terms :  $25.00  cash  on  signing  this  or- 
der; $25.00  cash  on  delivery  of  safe  and  $100.00  in  notes,  being 
ten  of  $10.00  each,  to  be  executed  and  delivered  to  you  by  the 
undersigned  when  the  safe  arrives,  said  notes  to  be  payable 
one  each  month  until  all  are  paid.  You  are  authorized  to  date 
said  notes  from  date  of  invoice,  as  you  may  elect,  either  before 
or  after  the  execution  thereof.  You  are  to  allow  5%  discount 
for  cash  settlement  if  same  is  made  within  ten  days  after  ar- 
rival of  safe. 

In  case  of  failure  to  pay  draft  for  cash  payment  when  pre- 
sented, or  to  execute  and  deliver  such  notes  covering  deferred 
payments,  it  is  agreed  that  the  full  amount  of  the  purchase 
price  shall  become  forthwith  due  and  payable.  Should  default 
be  made  in  the  payment  of  any  installment  it  is  agreed  that  all 
the  remaining  installments  shall  become  forthwith  due  and  pay- 
able. In  default  of  any  payment,  you  or  your  agent  may  take 
possession  of  and  remove  said  safe  without  legal  process  and  in 
such  case  all  payments  theretofore  made  by  the  undersigned, 
shall  be  considered  as  having  been  made  for  the  use  of  such  safe 
during  the  time  same  remained  in  the  possession  of  the  under- 
signed and  shall  be  retained  by  you  as  payment  therefor,  and 
for  myself,  my  successors  or  assigns  I  hereby  expressly  waive 
the  benefit  of  all  provisions  of  the  Lien  Laws  and  Exemption 
Laws  and  all  rights  or  causes  of  action  given  thereby.     In  the 


492  CONDITIONAL   SALES 

event  of  a  refusal  to  accept  said  safe  when  tendered,  it  is  agreed 
that  the  sum  as  above  mentioned,  less  any  actual  cash  pay- 
ments, shall  at  once  become  due  and  payable.  All  taxes  and  as- 
sessments levied  on  said  property  are  to  be  paid  by  the  under- 
signed. Any  injury  to  or  destruction  of  the  property  shall  in 
no  manner  effect  the  undersigned's  liability  for  payment  on 
this  contract  or  the  notes  given  thereunder. 

It  is  agreed  that  the  title  to  said  safe  shall  not  pass  until 
purchase  price  or  any  judgment  for  same  is  paid  in  full  but  that 
said  safe  shall  remain  your  property  until  that  time.  The  un- 
dersigned expressly  agrees  not  to  countermand  or  attempt  to 
annul  this  order,  w^hich  it  is  expressly  understood  covers  all 
agreements  of  every  name  and  nature  between  the  parties. 

Douglass  H.  Mackenzie. 
George  Whalen, 
Witness. 


CONDITIONAL  CONTRACT. 


I,  Wallace  McGill  of  Buffalo,  New  York,  have  this  day  re- 
ceived of  Willis  &  Brown,  also  of  Buffalo,  New  York,  the  fol- 
lowing described  property:  One  Willis  &  Brown  Sewing  Ma- 
chine, No.  17524,  in  drop  oak  cabinet,  under  an  agreement  for 
the  conditional  sale  thereof,  which  said  agreement  and  every 
condition  and  provision  thereof  is  set  forth  below  and  is  as  fol- 
lows: 

The  value  of  the  aforesaid  property  is  fixed  at  $50.00. 

I  agree  to  pay  Willis  &  Brown  the  sum  of  $1.00  cash  on 
signing  this  contract,  and  in  consideration  of  having  the  pos- 
session and  use  of  said  property  I  further  agree  to  pay  Willis 
&  Brown  at  their  place  of  business  in  Buffalo,  New  York,  the 
further  sum  of  $1.00  weekly,  said  payments  to  be  made  on  Sat- 
urday of  each  week  until  I  have  paid  the  full  sum  of  $50.00. 


CONDITIONAL  CONTRACTS.  493 

When  I  shall  have  paid  the  last  mentioned  sum  in  full  and  any 
other  sums  due  by  reason  of  my  default  as  hereinafter  pro- 
vided, I  am  to  have  title  and  ownership  to  said  property ;  Wil- 
lis &  Brown  to  have  full  and  absolute  title  and  ownership  to  the 
above  described  property  until  all  the  payments  have  been  made. 

I  expressly  agree  not  to  remove  said  property  or  any  part 
thereof  from  the  premises  I  now  occupy  without  first  obtaining 
the  written  consent  of  said  Willis  &  Brown  and  to  use  such 
property  at  all  times  while  this  contract  is  in  force  in  a  careful 
and  prudent  manner. 

I  further  expressly  agree  that  when  I  fail  to  make  any  of 
the  payments  herein  provided  for  at  the  time  when  the  same 
becomes  due  or  if  I  fail  to  keep  and  perform  faithfully  each  and 
every  one  of  the  terms  and  conditions  of  this  agreement,  Willis 
&  Browm  may  without  notice  to  me,  enter  my  premises  where 
such  property  is  located  and  take  immediate  and  full  possession 
thereof  and  upon  said  Willis  &  Brown  obtaining  said  above  de- 
scribed property  in  any  manner  and  holding  same  for  30  days, 
any  right  that  I  may  or  might  have  in  said  property  or  to  the 
possession  thereof  or  to  payments  made  thereon  shall  cease  ab- 
solutely without  a  subsequent  public  sale  of  said  property  and 
without  notice  of  sale  or  otherwise  to  me,  hereby  expressly 
waiving  any  action  or  right  of  action  of  any  kind  whatsoever, 
which  I  may  have  against  Willis  &  Brown  growing  out  of  such 
removal  or  attempted  removal  according  to  the  aforesaid  agree- 
ment, or  arising  by  reason  of  such  repossession  and  retention  of 
said  goods  by  said  Willis  &  Brown  without  subsequent  public 
sale  thereof  and  notice  to  me. 

I  hereby  agree  to  pay  any  and  all  charges  and  expenses 
including  a  reasonable  attorney  fee  incurred  in  taking  posses- 
sion of  said  property  or  in  collecting  said  bill  in  case  of  my  de- 
fault. 

I  hereby  expressly  and  solemnly  state  I  am  21  years  and 
upwards  of  age. 


494  CONDITIONAL  SALES 

In  Witness  Whereof,  on  this  12th  day  of  July,  1917,  I  have 
hereunto  subscribed  my  name  and  affixed  my  seal  to  this  agree- 
ment and  a  duplicate  hereof,  one  of  which  was  delivered  and 
retained  by  me. 

Wallace  McGill. 
Willis  &  Brown. 
William  H.  Verbeck, 
Witness. 


CONDITIONAL  CONTRACT  AND  NOTE. 


$75.00.  Charleston,  S.  C,  July  12,  1917. 

I,  Seymour  W.  Doran,  promise  to  pay  to  Cary  Safe  Com- 
pany or  order,  Seventy-five  Dollars,  at  their  office  in  Buffalo, 
New  York,  in  five  installments,  namely:  Fifteen  Dollars  on  the 
I2th  day  of  August,  1917;  Fifteen  Dollars  on  the  12th  day  of 
October,  1917;  Fifteen  Dollars  on  the  12th  day  of  December, 
1917;  Fifteen  Dollars  on  the  12th  day  of  February,  1918;  Fif- 
teen Dollars  on  the  12th  day  of  April,  1918,  being  the  price  of 
one  iron  safe,  and  I  agree  that  on  default  of  payment  of  any  of 
said  instalments  when  due,  the  full  balance  of  this  note  remain- 
ing unpaid  shall  thereupon  mature  and  become  immediately 
due  and"  collectable,  without  further  notice  or  demand.  This 
note  to  bear  interest  from  date  at  the  rate  of  6%  per  annum. 
But  said  sale  is  conditional,  and  title  to  said  property  remains 
in  said  Cary  Safe  Company  until  this  note  and  costs  are  fully 
paid.  x\nd  in  default  of  payment  of  said  note,  or  any  part 
thereof,  said  property  is  to  be  returned  to  said  Cary  Safe  Com- 
pany, on  demand.  If  said  property  or  any  part  thereof  be  lost, 
damaged  or  destro^^ed  before  payment  in  full  of  the  purchase 
money,  the  vendee  or  vendees  herein  shall  in  no  event  be  en- 
titled to  a  rescision  of  the  contract  or  abatement  in  the  price. 

If  this  note  be  placed  in  the  hands  of  an  attorney  for  col- 
lection, the  subscriber  hereby  agrees  and  promises  to  pay  10 
per  cent,  attorney's  fees  on  principal  and  interest  due  on  same. 


CONDITIONAL  CONTRACTS.  495 

Each  of  us,  whether  principal,  security,  guarantor,  indorser 
or  other  party  hereto,  hereby  severally  waives  and  renounces 
each  for  himself  and  family,  any  and  all  homestead  or  exemp- 
tion rights,  and  any  and  all  exemption  of  daily,  weekly,  monthly 
or  yearly  wages,  or  salary  of  each  of  us,  from  the  process  of 
garnishment,  either  of  us,  or  the  family  of  either  of  us,  may 
have  under  or  by  virtue  of  the  constitution  or  laws  of  this 
state,  or  of  any  state  of  the  United  States  as  against  this  debt 
or  any  renewal  thereof,  and  each  further  waives  demand,  pro- 
test and  notice  of  demand,  protest  and  non-payment.  Given 
under  the  hand  and  seal  of  each  party. 

(  CORPORATE  ) 
I         SEAL.  j 

Seymour  W.   Doran.     (Seal.) 
Gary  Safe  Gompany, 
By  Harvey  G.  Bush, 

Asst.  Treas. 
Signed,  sealed  and  delivered 

in  presence  of  Henry  Smith. 


CONDITIONAL  GONTRAGT  IN  THE  FORM 
OF  A  NOTE. 


$100.00.  Elmira,  N.  Y.,  July  12,  1917. 

For  value  received  I,  the  subscriber,  of  Elmira,  New  York, 
promise  to  pay  to  the  order  of  Henry  Marsden,  of  Buffalo,  New 
York,  $100.00  at  his  office  in  said  city,  as  follows:  Five  Dollars 
cash  on  signing  this  order ;  $5.00  cash  on  delivery  of  the  prop- 
erty, and  the  balance,  two  dollars  per  week  with  legal  interest 
on  each  of  said  sums. 

The  consideration  for  the  payment  of  the  above  named 
amount  is  the  agreement  by  said  Henry  Marsden  to  sell  and  de- 
liver to  the  subscriber  at  Elmira,  New  York,  one  iron  safe,  the 


496  •  CONDITIONAL  SALES 

use  of  which  is  let  to  the  subscriber  and  this  agreement  is  made 
upon  the  following  conditions,  namely : 

The  said  safe  is  and  shall  remain  the  property  of  said 
Henry  Marsden  until  each  and  every  one  of  said  amounts  and 
interest  thereon,  and  any  judgment  rendered  thereon  shall  be 
paid  in  full  and  in  case  the  subscriber  makes  default  in  payment 
of  said  amounts  or  any  of  them  or  interest  thereon  at  the  time 
and  place  above  specified,  or  shall  sell,  assign  or  remove,  or  at- 
tempt to  encumber,  dispose  of  or  remove  said  safe  from  the 
place  above  mentioned  without  the  written  consent  of  said 
Henry  Marsden.  his  agents  or  assigns;  or  if  said  Marsden,  his 
agents  or  assigns  shall  feel  insecure  or  unsafe,  the  subscriber 
shall  on  demand  deliver  the  property  in  as  good  condition  as 
when  received,  reasonable  use  or  wear  excepted,  or  said  Mars- 
den or  his  agents  or  assigns  shall  have  the  right  without  notice 
or  demand  to  take  immediate  possession  of  said  property  and 
for  that  purpose  may  pursue  the  same  wherever  it  may  be 
found,  and  may  enter  my  premises  with  or  without  force  or 
process  of  law,  or  wherever  the  said  safe  may  be,  or  be  sup- 
posed to  be,  and  search  for  same  and  if  found  to  take  posses- 
sion thereof  and  in  case  said  Marsden,  his  agents  or  assigns 
shall  retake  possession  of  said  property,  all  moneys  paid  on  the 
purchase  price  thereof  shall  belong  to  said  Marsden  or  his  as- 
signs as  liquidated  damages  for  nonfulfillment  of  this  contract 
by  the  subscriber  and  for  loss  in  value  of  said  property  and  for 
the  use  and  rental  thereof  while  remaining  in  possession  of  the 
subscriber;  or  should  default  be  made  in  making  any  of  the 
said  payments  as  above  specified,  and  should  the  same  remain 
in  arrears  and  unpaid  for  the  period  of  10  days,  or  should  any 
condition,  stipulation  or  agreement  herein  contained  be  violated 
or  not  kept  by  me,  then  in  such  case  the  whole  sum  remaining 
unpaid  on  this  agreement  shall  at  the  option  of  said  Marsden 
or  his  assigns  without  notice  become  immediately  due  and  pay- 
able and  said  Marsden  or  his  assigns  may  at  their  option 
whether  they  have  or  have  not  retaken  possession  of  said  prop- 
erty, enforce  the  payment  and  collection  of  the  balance  remain- 
ing unpaid  on  this  agreement  and  interest  thereon. 


CONDITIONAL  CONTRACTS.  497 

In  case  of  the  payment  of  each  and  every  said  amount  and 
interest  thereon  or  payment  of  judgment  obtained  thereon,  the 
full  and  absokite  title  of  said  property  shall  pass  and  vest  in  the 
subscriber  hereto,  it  being-,  however,  expressly  understood  that 
title  shall  not  pass  to  the  subscriber  until  any  and  all  judgments 
obtained  hereon  are  paid  and  satisfied  in  full.  This  agreement 
shall  not  be  binding  on  said  Marsden  until  accepted  and  ap- 
proved by  him.  The  contract  has  been  signed  in  duplicate  and 
a  copy  thereof  delivered  to  the  subscriber,  the  receipt  of  which 
is  hereby  acknowledged. 

Samuel  Wellman. 

Harrison  McCall, 

Witness. 

Accepted, 

Henry  Marsden. 

For  value  received  I  hereby  guarantee  the  payment  of  the 
above  contract  in  all  respects  when  due  and  I  hereby  make 
same  a  charge  on  my  separate  estate. 

Mary  H.  Wellman. 


498 


CONDITIONAL   SALES 


BAILMENT  CONTRACTS. 


In  these  contracts  the  form  of  a  lease  is  preserved,  the 
stipulation  beinq-  that  the  property  is  on  rental.  In  the  first 
form  the  instrument  is  a  lease  pure  and  simple  without  pro- 
vision for  the  transfer  of  title  at  the  termination  of  the  rental 
period.  In  the  other  bailment  contracts  given  under  the  present 
heading  the  provision  is  included  that  upon  full  payment  of  all 
the  rentals  provided  for  by  the  contract,  the  title  to  the  property 
is  transferred  to  the  lessee. 


BAILMENT  CONTRACT. 


This  certifies  that  I,  John  Mackay,  now  residing  at  25 
Main  St.,  in  the  city  of  Newark,  New  Jersey,  have  rented  and 
received  from  the  Cary  Safe  Company,  of  Buffalo,  New  York, 
one  iron  safe,  all  in  good  order  and  for  the  use  of  which  I  agree 
to  pay  rent  as  follows:  $10.00  cash  on  delivery  of  this  agree- 
ment, the  receipt  whereof  is  hereby  acknowledged  and  accepted 
as  payment  of  the  first  month's  rent  only,  and  then  at  the  rate 
of  $5.00  per  month  payable  in  advance  on  the  first  day  of  each 
month  thereafter  for  ten  months  at  the  office  of  the  Cary  Safe 
Company  in  Bufifalo,  New  York,  without  notice  or  demand. 
But  if  default  shall  be  made  in  any  of  said  payments  or  if  I 
shall  sell,  or  ofifer  to  sell,  or  remove,  or  attempt  to  remove  said 
safe  from  my  aforesaid  residence  without  written  consent  of 
Cary  Safe  Company,  then  in  that  case,  or  if  otherwise  at  the 
expiration  of  the  time  for  which  said  safe  is  rented,  I  will  re- 
turn and  deliver  the  same  to  said  company  in  good  order  save 

499 


500  CONDITIONAL  SALES 

reasonable  wear,  and  said  company  or  its  agents  may  assume 
actual  possession  thereof  and  I  hereby  authorize  and  empower 
the  said  company  or  its  agents  to  enter  the  premises  wherever 
said  safe  may  be  and  take  and  carry  same  away,  hereby  waiv- 
ing any  action  for  trespass  or  damages  therefor  and  disclaim- 
ing any  right  of  resistance  thereto  and  I  also  waive  all  rights 
of  homestead  and  other  exemptions  of  said  state  against  this 
obligation. 

Witness  my  hand  this  12th  day  of  July,  1917. 

John  Mackay. 
Attest, 

Isaac  Hummell. 


BAILMENT  CONTRACT. 


This  Certifies,  that  Henry  D.  Fisher,  the  undersigned,  now 
residing  at  42  Lawrence  Place,  Buffalo,  New  York,  has  received 
of  the  S.  O.  Barnum  Co.,  one  motor  bicycle,  returnable  on  de- 
mand all  in  good  order  and  repair  and  valued  at  One  Hundred 
and  Fifty  Dollars  ($150.00),  which  the  undersigned  agrees  to 
use  with  care  and  keep  in  like  order  and  for  the  use  of  which 
the  undersigned  agrees  to  pay  as  follows : 

On  delivery  of  said  property.  Twenty  Dollars  ($20.00), 
which  shall  be  accepted  as  payment  for  rent  until  January  i, 
.1917,  and  then  at  the  rate  of  Ten  Dollars  ($10.00)  per  month 
payable  in  advance  on  the  first  day  of  each  and  every  month  at 
the  office  of  S.  O.  Barnum  Co.,  Buffalo,  New  York,  without 
notice  or  demand. 

If  default  be  made  in  any  of  the  payments  or  in  case  the 
undersigned  shall  sell,  offer  to  sell,  remove  or  attempt  to  re- 
move said  property  from  under  his  custody  or  control  without 
the  consent  in  writing  of  the  said  S.  O.  Barnum  Co..  then  in 
that  case  this  lease  shall  cease  and  terminate  and  said  S.  O. 


BAILMENT  CONTRACTS.  5OI 

Barnum  Co.,  or  its  agent,  is  hereby  authorized  to  resume  actual 
possession  of  said  property  wherever  same  may  be  and  to  take 
and  carry  the  same  away  and  the  undersigned  hereby  waives 
any  action  for  trespass  or  damages  therefor. 

It  is  further  agreed  that  the  undersigned  may  at  any  time 
within  said  rental  period  purchase  said  property  by  paying  the 
above  named  valuation  therefor  and  in  that  case  the  rent  there- 
tofore paid  shall  be  deducted  from  such  purchase  price.  If  any 
installment  of  rent  is  not  paid  when  due  or  said  property  is  not 
returned  upon  demand,  undersigned  agrees  to  pay  an  attor- 
ney's fee  of  Ten  Dollars  ($10.00)  in  case  this  lease  is  placed  in 
the  hands  of  an  attorney  for  collection  of  said  rent  or  to  re- 
cover possession  of  said  property. 

Henry  D.  Fisher. 

Dated  at  Buffalo,  New  York.  July  12,  1917. 
Attest,  Lawrence  Halliday. 

In  Pennsylvania  a  conditional  contract  of  sale,  except  for 
railroad  equipment,  and  where  the  property  is  attached  or  to 
be  attached  to  real  estate,  will  not  be  upheld  by  the  courts  where 
the  rights  of  third  parties  have  intervened.  For  this  reason  a  bail- 
ment or  lease  form  should  be  used.  The  following  form  has 
proved  effective  and  satisfactory  and  may  be  safely  used. 


BAILMENT  CONTRACT  FOR  PENNSYLVANIA. 


Bradford,  Pa.,  July  12th,  191 7. 
H.  K.  Mfg.  Co., 

Buffalo,  N.  Y. 

Please  send,  as  soon  as  convenient,  one  No.  5  "FIRE- 
PROOF" SAFE,  approximate  size  inside,  17  inches  high,  12 
inches  wide,  11  inches  deep,  as  per  your  illustrated  catalogue, 
or  plan  on  back  hereof,  if  any.     Necessary  alterations  allowed. 


502  CONDITIONAL  SALES 

Ship  via  Penn.  R.  R.,  F.  O.  B.  cars  at  Buffalo,  New  York,  and 
rent  same  to  undersigned. 

This  lease  shall  be  for  the  term  of  ten  (lo)  months  from 
date,  with  rent  payable  as  follows:  Fifteen  Dollars  ($15.00) 
on  delivery  of  safe  as  rent  for  first  two  months ;  balance  Ten 
Dollars  (Sio.oo)  per  month  thereafter  on  the  day  of  the  month 
corresponding  to  the  date  of  this  lease. 

It  is  agreed  that  said  safe  shall  not  be  sublet  to  any  other 
person,  without  your  consent  in  writing,  and  shall  be  surren- 
dered to  you  at  the  expiration  of  this  lease,  in  as  good  condition 
as  when  taken,  ordinary  wear  excepted;  provided,  however,  if 
said  rent  shall  be  promptly  and  fully  paid,  whenever  such  pay- 
ments shall  amount  to  the  sum  stated  below,  the  undersigned 
may  elect  to  become  owner  of  said  safe. 

If  any  portion  of  said  rent  shall  not  be  paid  as  agreed,  or 
if  any  of  the  provisions  of  this  lease  be  violated,  all  rent  shall 
become  due  and  payable  forthwith,  and  you  or  your  agent  may 
take  possession  of  and  remove  said  safe,  w^ithout  legal  process. 
All  rent  paid  shall  be  retained  by  you  as  hire  for  said  safe.  All 
exemptions  and  all  claims  for  damages  are  hereby  waived. 
Nothing  but  shipment  or  delivery  or  actual  acceptance  in  writ- 
ing, shall  constitute  your  acceptance  of  this  lease,  and  it  is 
agreed  same  shall  not  be  cancelled  or  annulled  by  the  under- 
signed. Receipt  of  a  duplicate  hereof  is  hereby  acknowledged. 
The  foregoing  embodies  all  agreements  between  the  parties ;  it 
being  understood  that  all  claims  of  verbal  or  other  agreements 
are  hereby  waived.  It  is  understood  that  agents  are  not  au- 
thorized to  collect. 

Truly  yours, 

George  L.  Hodgson. 

Amount  $75.00. 

Accepted. 

H.  K.  Mfg.  Co., 
By  Henry  Smith, 

President. 


BAILMENT    CONTRACTS.  503 

Where  a  more  formal  contract  is  desired  for  use  in  Penn- 
sylvania the  following  may  be  employed.  Blanks  will,  of 
course,  be  left  in  the  form  when  printed  for  variable  matter 
such  as  name  of  lessee,  terms  of  payment,  etc. 


BAILMENT  CONTRACT. 


Indenture  made  this  12th  day  of  July,  1917,  between  the 
Gary  Safe  Company  of  BuflFalo,  New  York,  hereinafter  termed 
the  lessor,  and  Hermann  Gillette  of  Lancaster,  Pennsylvania, 
hereinafter  called  the  lessee. 

The  said  lessor  doth  hereby  lease  unto  the  said  lessee  one 
No.  5  "FIRE-PROOF"  SAFE  of  the  following  approximate 
inside  dimensions:  Height,  17  inches;  width,  12  inches;  depth, 
II  inches,  the  said  lease  to  be  for  the  term  of  ten  months  from 
the  date  hereof  and  rental  for  said  safe  to  be  paid  by  the  said 
lessee  as  follows:  On  delivery  of  safe.  Fifteen  Dollars  ($15.00) 
which  shall  be  the  rental  of  said  safe  for  the  first  two  months 
of  the  present  lease,  and  Ten  Dollars  ($10.00)  on  the  21st  day 
of  each  and  every  month  thereafter  until  the  expiration  of  the 
term  for  which  said  safe  is  leased ;  delivery  of  said  safe  to  be 
made  F.  O.  B.  on  cars  at  BuflFalo,  New  York. 

The  said  lessee  hereby  agrees  to  surrender  the  said  safe  at 
the  expiration  of  this  lease  in  as  good  condition  as  when  re- 
ceived by  him,  ordinary  wear  excepted,  provided,  however, 
that  if  the  rentals  as  herein  specified  and  set  forth  shall  be  fully 
and  promptly  paid,  the  said  lessee  may,  whenever  the  said 
rental  payments  aggregate  the  sum  of  seventy-five  Dollars 
($75.00),  elect  to  become  owner  of  said  safe  and  if  said  lessee 
so  elects  and  so  notifies  the  said  lessor,  this  present  lease  shall 
then  cease  and  terminate  and  the  said  safe  shall  without  further 
payment  under  this  present  indenture  become  and  be  the  pro]v 
erty  of  the  said  lessee  hereunder. 


504  CONDITIONAL  SALES 

The  said  lessee  further  agrees  that  said  safe  shall  not  be 
sublet  to  any  other  person  or  persons  during  the  life  of  this 
lease  without  the  written  consent  of  the  lessor.  Also,  if  any 
portion  of  said  rent  shall  not  be  paid  at  the  times  and  in  the 
amounts  hereinbefore  set  forth,  or  if  any  of  the  provisions  of 
this  lease  be  violated,  the  rental  of  said  safe  for  the  full  period 
of  this  lease  shall  become  due  and  payable  forthwith,  and  the 
said  lessor  through  its  officers  or  agents  may  take  possession 
of  and  remove  said  safe  without  legal  process  and  the  said 
lessee  hereby  waives  all  exemptions  and  all  claims  for  dam- 
ages and  agrees  that  all  rent  paid  by  him  up  to  the  time  of  the 
repossession  of  said  safe  by  the  lessor  shall  be  retained  by  said 
lessor  as  hire  and  payment  for  the  lessee's  use  of  said  safe. 

It  is  further  agreed  that  the  present  lease  is  not  effective 
as  to  the  said  lessor  until  formally  executed  by  the  said  lessor, 
or  the  agent  of  said  lessor,  and  the  said  lease  shall  not  be  sub- 
ject to  cancellation  or  annullment  by  the  said  lessee. 

It  is  further  expressly  understood  and  agreed  that  all  claims 
of  any  verbal  or  other  agreements  respecting  the  said  safe  shall 
be  and  hereby  are  waived,  and  that  all  agreements  between  the 
parties  are  embodied  in  the  present  indenture  of  which  the  said 
lessee  hereby  acknowledges  the  receipt  of  a  duplicate. 

In  Witness  Whereof,  the  parties  hereunto  have  respec- 
tively affixed  their  legal  signatures  and  seals  on  the  day  and 
year  first  above  mentioned. 

Cary  Safe  Company. 

By  Harvey  G.  Bush, 

Asst.  Treasurer. 

Hermann  Gillette,         [L.  S.] 

CORPORATE  ) 
SEAL.         \ 

Agents  are  Not  Authorized  to  Collect  Rentals. 


RELEASES. 


In  a  few  states  the  laws  require  that  a  contract  of  con- 
ditional sale  shall  be  released  or  discharged  immediately  upon 
payment,  whether  requested  by  the  vendee  or  not,  and  assess  a 
penalty  for  failure  so  to  do.  In  these  states  the  law  will,  of 
course,  be  followed  to  the  letter  but  elsewhere  it  seems  hardly 
necessary  to  send  a  formal  release  of  the  contract  when  pay- 
ment is  made  unless  such  release  is  requested  by  the  vendee 
or  some  other  proper  party. 

If  a  release  is  requested  it  will  usually  be  found  sufficient 
to  send  it  direct  to  the  party,  requesting  him  to  place  the  same 
on  file,  or  cause  it  to  be  recorded  as  necessary.  The  party  re- 
ceiving the  release  or  discharge  will  usually  do  this,  thus  sav- 
ing to  the  vendor  the  cost  and  trouble  involved  in  the  filing  or 
recording. 

Where  vendor  is  a  corporation  located  in  New  York  and 
the  contract  of  conditional  sale  has  been  recorded,  though  in  an- 
other state,  the  following  form  of  release  may  be  used.  If  the 
vendor  resides  in  another  state  the  acknowledgment  should 
comply  with  the  laws  of  that  state.  Where  the  release  is  to  be 
filed  in  New  York  state  it  seems  necessary  that  it  should  be  ac- 
knowledged. 

RELEASE  WHEN  VENDOR  IS  A  CORPORATION. 


Cary  Safe  Company,  a  corporation  duly  organized  under 
the  laws  of  the  state  of  New  York,  and  having  its  principal 
place  of  business  at  Ruflfalo,  New  York,  does  hereby  certify 

505 


5o6  CONDITIONAL   SALES 

that  the  provisions  of  a  certain  conditional  contract  for  the 
leasing  of  an  iron  safe  heretofore  given  by  Henry  Smith  of 
Lexington,  Kentucky,  to  said  Gary  Safe  Company,  have  been 
satisfied  and  the  amount  due  thereunder  paid  in  full,  and  the 
county  clerk  of  Fayette  county,  Kentucky,  is  hereby  directed 
to  cancel  and  discharge  from  record  the  said  contract  recorded 
on  or  about  January  i,  1917. 

Dated  at  Bufifalo,  N.  Y. 
July  12,  1917. 

Cary  Safe  Company, 

By  Harvey  G.  Bush, 

Asst.  Treas. 

SEAL.         I 
CORPORATE  i 


State  of  New^  York, 
County  of  Erie. 

On  this  23rd  day  of  July,  in  the  year  1917,  before  me  per- 
sonally came  Harvey  G.  Bush,  to  me  known,  who  being  by  me 
duly  sworn,  deposes  and  says  that  he  is  the  Assistant  Treas- 
urer of  the  Cary  Safe  Company,  the  corporation  described  in 
and  which  executed  the  foregoing  instrument ;  that  he  knew 
the  seal  of  said  corporation ;  that  the  seal  affixed  to  the  said  in- 
strument was  such  corporate  seal  and  that  it  was  affixed  by  or- 
der of  the  Board  of  Directors  of  said  corporation,  and  that  he 
signed  the  corporate  name  thereto  by  like  order,  as  Assistant 
Treasurer  of  said  corporation. 

Harvey  G.  Bush. 
Sworn  to  before  me  this  23rd  day 
of  July,  1917. 

Henry  W.  Carr, 

Notary  Public  in  and 
for  Erie  Co.,  N.  Y. 

NOTARIAL 
SEAL. 


RELEASES.  507 

A  form  of   individual   release  when   the  contract  of  con- 
ditional sale  has  been  filed,  is  as  follows: 


RELEASE  OF  FILED  INSTRUMENT. 


I,  Hiram  H.  Bacon  of  Buffalo,  New  York,  do  hereby  cer- 
tify that  the  provisions  of  a  certain  conditional  contract  for  the 
sale  of  an  iron  safe  heretofore  given  by  Oscar  A.  Simon  of  To- 
peka,  Kansas,  to  me,  have  been  satisfied  and  the  amount  due 
thereunder  paid  in  full,  and  the  register  of  deeds  for  Shawnee 
county,  Kansas,  is  hereby  directed  to  cancel  and  discharge 
from  record  the  said  contract  filed  in  his  office  on  or  about 
January  i,  1917. 

Dated  at  Buffalo,  N.  Y., 

April  23,  1917.  Hiram  H.  Bacon. 

If  the  contract  of  conditional  sale  has  been  recorded,  the 
release  must  be  ackonweldged  and  its  form  varied  to  meet  the 
conditions,  as  in  the  following: 


RELEASE  OF  RECORDED  INSTRUMENT. 


I,  David  W.  \'an  Hoesen  of  Cortland,  New  York,  do 
hereby  certify  that  the  provisions  of  a  certain  conditional  con- 
tract for  the  sale  of  an  iron  safe  heretofore  given  by  Orris  U. 
Kellogg  of  Davenport,  Iowa,  to  me,  have  been  satisfied  and  the 
amount  due  thereunder  paid  in  full,  and  the  county  recorder  of 
Scott  county,  Iowa,  is  hereby  directed  to  cancel  and  discharge 
from  record  the  said  contract  filed  in  his  office  on  or  about 
January  4,  1917. 

David  W.  Van  Hoesen. 

Dated  at  Cortland,  N.  Y., 
April  23,  1917. 


5o8  conditional  sales 

State  of  New  York, 


r  SS. 

County  of  Cortland 

On  this  23rd  day  of  April,  1917,  before  me,  the  subscriber, 
personally  came  David  W.  Van  Hoesen  of  Cortland,  New  York, 
to  me  known  and  known  to  me  to  be  the  person  described  in 
and  who  executed  the  foregoing  instrument  and  duly  acknowl- 
edged that  he  executed  the  same. 

Edwin  L.  DufTy, 

Notary  Public  in  and 
for  Cortland  Co.,  N.  Y. 
notarial 
seal. 

Where  vendor  is  a  corporation  and  the  contract  has  been 
filed,  the  following  form  of  release  may  be  used. 

RELEASE  OF  FILED  INSTRUMENT. 


Cary  Safe  Company,  a  corporation  duly  organized  under 
the  laws  of  the  State  of  New  York  and  having  its  principal 
place  of  business  at  Bufifalo,  New  York,  does  hereby  certify 
that  the  provisions  of  a  certain  conditional  contract  for  the  sale 
of  an  iron  safe  heretofore  given  by  William  L.  Fox  of  Pierre, 
South  Dakota,  to  said  Cary  Safe  Company,  have  been  satisfied 
and  the  amount  due  thereunder  paid  in  full,  and  the  recorder 
of  deeds  for  Hughes  county,  South  Dakota,  is  hereby  directed 
to  cancel  and  discharge  from  record  the  said  contract  filed  in 
his  office  on  or  about  December  20,  1916. 

In  Witness  Whereof,  the  said  Cary  Safe  Company  has 
caused  this  instrument  to  be  executed  this  12th  day  of  July, 
1917. 

Cary  Safe  Company, 
By  Harvey  G.  Bush, 

Asst.  Treas. 

Where  a  contract  has  been  filed  but  not  recorded  it  is  not 
ordinarily  necessary  to  affix  the  corporate  seal  to  the  release. 


MISCELLANEOUS  FORMS. 


LETTER  TO  RECORDING  OR  FILING  OFFICER. 


Village  or  Town  Clerk,  City  of  Old  Town,  County  of  Penob- 
scot, State  of  Maine: 

Dear  Sir:  Enclosed  please  find  contract  of  J.  F.  Curley, 
which  we  desire  placed  on  file  in  your  office,  and  we  hand  you 
forty  cents  in  stamps  as  a  fee  for  such  services.  We  also  en- 
close a  stamped  envelope,  and  would  ask  you  to  kindly  advise 
us,  at  once,  date  above  was  placed  on  file,  and  greatly  oblige, 

Yours  truly, 

Cary  Safe  Company, 

Per  S.  W.  D. 
Please  reply  on  this  sheet. 


OATH  TO  COPY  OF  CONTRACT. 
State  of  New  York, 


ss 
County  of  Erie 

Jacob  Truxas,  being  duly  sworn,  says    the    within    con- 
tract is  a  true  copy  of  the  original. 

Jacob  Truxas. 
Subscribed  and  sworn  to  before  me  this  7th  day  of  May, 
1917.  Henry  W.  Carr, 

Notary  Public  in  and  for . 

I  notarial  ] 

I        SEAL.  C 


509 


5  TO  CONDITIONAL   SALES 

OATH  TO  COPY  OF  CONTRACT. 


I  hereby  certify  within  to  be  a  true  copy  of  original  con- 
tract. 

Julia  S.Willis. 

Sworn  and  subscribed  before  me  this  7th    day    of    May, 
191 7.  Henry  W.  Carr, 

Notary  Public  in  and  for . 

NOTARIAL 
SEAL. 


APPENDIX. 


BANKRUPTCY. 

It  is  quite  important  that  conditional  sale  contracts  should 
be  properly  handled  in  bankruptcy.  Where  such  a  contract 
has  been  secured  and  the  vendee  becomes  bankrupt,  it  is  very 
seldom  essential  for  the  vendor  to  spend  any  money  in  placing 
his  claim  properly  before  the  bankruptcy  court.  This  is  especi- 
ally true  where  the  contract  has  been  properly  perfected,  and 
filed  or  recorded,  as  required  by  law  in  the  several  states.  A 
claim  arising  under  conditional  contract  of  sale  is  often  classed 
as  secured,  but  under  a  strict  interpretation  of  the  bankruptcy 
law  in  its  definition  of  a  secured  creditor,  such  a  contract  does 
not  admit  the  vendor  or  his  assignee  to  that  class.  "Secured 
creditors  shall  include  a  creditor  who  has  security  for  his  debt 
upon  the  property  of  the  bankrupt  of  a  nature  to  be  assign- 
able under  this  act."  Bankruptcy  Law,  1908,  Chap,  i,  §  i,  Sub- 
Division  23. 

In  the  majority  of  states  the  articles  delivered  to  a  vendee 
under  conditional  contract  of  sale  do  not  become  his  property 
until  he  shall  have  performed  the  conditions  in  full.  This 
usually  means  payment  in  full,  and  for  that  reason  the  trustee 
of  his  estate  who  secures  possession  of  such  property  has  in 
fact  the  property  of  the  creditor,  and  not  the  property  of  the 
debtor  bankrupt ;  but  he  undoubtedly  succeeds  to  the  rights  of 
the  vendee  and  may  perform  under  the  contract  just  as  the 
vendee  might  have  performed,  thus  bringing  the  property  in 
question  into  the  bankrupt's  estate  for  distribution. 

Where  a  secured  claim  is  filed  the  value  of  the  security 
must  be  determined,    and    this    usually    means    the    property 


512  CONDITIONAL   SALES 

against  which  it  is  a  lien  must  be  sold  and  the  proceeds  credited 
on  the  debt.  The  creditor  may  then  prove  his  claim  for  the  bal- 
ance and  receive  whatever  dividends  may  be  paid.  A  creditor 
under  conditional  contract  of  sale  may  always  prove  his  claim 
unsecured,  if  for  any  reason  he  believes  better  results  will  be 
obtained. 

The  bankruptcy  law  has  now  been  amended,  in  efifect  June 
25th,  1910,  so  that  a  trustee  is  vested  with  much  greater  powers 
concerning  this  class  of  property  than  formerly.  "Such  trustee 
as  to  all  property  in  the  custody  and  coming  into  the  custody 
of  the  bankruptcy  court,  shall  be  deemed  vested  with  all  the 
rights,  remedies  and  powers  of  a  creditor  holding  a  lien  by  legal 
or  equitable  proceedings  thereon ;  and  also  as  to  all  property 
not  in  the  custody  of  the  bankruptcy  court,  shall  be  deemed 
vested  with  all  the  rights,  remedies  and  powers  of  a  judgment 
creditor  holding  an  execution  duly  returned  unsatisfied.'* 

Great  care  should  therefore  be  exercised  by  all  vendors  un- 
der conditional  sale  contracts,  in  the  future,  to  have  same  prop- 
erly filed  or  recorded,  as  provided  by  the  state  laws ;  for  other- 
wise the  trustee  in  bankruptcy  may  rightfully  claim  the  same 
interest  in  property  delivered  under  such  a  contract,  as  could 
be  claimed  by  an  attachment  or  execution  creditor  who  had 
levied  upon  it  in  the  hands  of  the  bankrupt  under  like  con- 
tions.  In  re:  Priegle  Paint  Co.,  175  Fed.  586;  In  re:  Norton, 
181  Fed.  901;  Liquid  Carbonic  Co.  v.  Quick,  182  Fed.  603; 
Modifies  in  re:  Rinker,  174  Fed.  490;  In  re :  Ferguson  Contract- 
ing Co.,  Ex  parte  Vulcan  Iron  Works,  183  Fed.  880;  Guarantee 
Title  &  Trust  Co.  v.  First  National  Bank,  185  Fed.  373 ;  In  re : 
Gartman,  186  Fed.  349;  In  re:  Gehris-Herbine  Co.,  188  Fed. 
502;  In  re:  Basemore,  189  Fed.  236;  In  re:  Williamsburg  Knit- 
ting Mill,  190  Fed.  871;  See  In  re:  Lansman,  183  Fed.  647; 
Rock  Island  Plow  Co.  v.  Reardon,  222  U.  S.  354;  Ludvigh  v. 
Am.  Woolen  Co.,  231  U.  S.  522;  Fellows  v.  Continental  Savings 
Bank,  235  U.  S.  300;  Bailey  v.  Baker  Ice  Machine  Co.,  239  U. 
S.  268. 


BANKRUPTCY.  513 

It  is  advisable  in  most  instances,  therefore,  to  present  your 
claim  in  such  a  manner  that  it  must  be  paid  in  full  or  the  prop- 
erty in  question  be  delivered  to  you.  From  long  experience  in 
handling  this  class  of  cases,  the  author  of  Haring's  "Con- 
ditional Sales"  has  been  most  successful  in  securing  such  re- 
sults by  presenting  to  the  referee  in  bankruptcy  a  petition  of 
intervention,  asking  for  payment  in  full  or  return  of  the  prop- 
erty which  was  held  by  the  bankrupt  under  conditional  sale 
contract.  When  notice  is  received  that  a  vendee  under  con- 
ditional contract  of  sale  has  been  declared  bankrupt,  or  where 
information  arrives  through  any  source,  that  creditors  have 
filed  an  involuntary  petition  for  adjudication  in  bank- 
ruptcy, the  referee  who  will  have  jurisdiction  should 
be  communicated  with  at  once.  If  a  formal  notice 
of  first  meeting  of  creditors  is  received,  this  notice 
will  include  the  name  and  address  of  such  referee.  Where 
no  other  source  is  available,  a  letter  requesting  such  informa- 
tion, directed  to  a  bank  in  the  town  or  city  where  the  bankrupt 
resides  will  almost  without  exception  receive  prompt  atten- 
tion. When  the  name  of  the  referee  in  bankruptcy  having 
jurisdiction  of  the  case  in  question  shall  have  been  received,  he 
should  be  written  at  once  to  the  effect  that  among  the  assets 
may  be  found  the  property  covered  by  your  conditional  sale 
contract  and  a  copy  of  the  contract  in  question  should  be  en- 
closed. (Form  I.)  The  referee  will  usually  reply  promptly,  ac- 
knowledging receipt  of  your  favor  and  stating  that  the  prop- 
erty in  question  will  not  be  disposed  of  until  the  question  of 
title  has  been  determined. 

Thereafter  and  at  your  earliest  convenience,  preferably 
before  the  first  meeting  of  creditors,  you  should  forward  to  the 
referee  in  question  the  original  contract  under  which  you 
claim,  if  same  is  in  your  possession,  and  if  not,  attention  should 
be  called  to  the  fact  that  it  is  filed  or  recorded,  and  give  the 
official  title  and  place  of  residence  of  such  filing  or  recording 
officer.  Where  notes  have  been  taken  covering  deferred  pay- 
ments, the  original  unpaid  notes  should  be  sent  to  the  referee. 


514  CONDITIONAL   SALES 

At  this  time  should  be  prepared  the  petition  of  intervention 
and  to  it  should  be  attached  a  copy  of  the  contract,  also  copies 
of  all  notes  which  have  been  given  and  remain  unpaid.  In  case 
the  original  contract  is  filed  or  recorded  and  cannot  be  sent, 
then  the  copy  attached  to  the  petition  should  be  certifi-ed  by  the 
recording  oflficer  in  whose  ])ossession  the  original  remains. 

This  petition  may  be  drawn  up  in  several  different  ways 
but  a  form  which  is  brief  and  to  the  point  is  most  desirable. 
It  should,  of  course,  describe  the  transaction  which  has  taken 
place,  giving  the  date  and  the  amount  of  the  contract  in  ques- 
tion and  the  balance  unpaid  thereon,  and  conclude  with  a  re- 
quest for  delivery  of  the  property  or  payment  in  full  of  the 
balance  under  the  contract  and  notes.  This  paper  should  be 
sworn  to,  and  where  the  petitioner  is  a  corporation,  the  oath 
must  be  made  by  an  ofificer,  and  must  comply  with  the  pro- 
visions of  the  particular  state  in  which  the  verification  is  made. 
Where  the  petition  is  filed  by  an  individual  or  a  partnership,  it 
must  be  sworn  to  by  the  individual  or  a  member  of  the  partner- 
ship, and  such  oath  must  conform  to  the  laws  of  the  state  in 
which  it  is  made.  Accompanying  the  petition  should  be  a  form 
of  order  for  convenience  of  the  referee  in  granting  the  relief 
requested.  (Convenient  forms  for  the  petitions  of  interven- 
tion. Forms  TI,  Til  and  the  order  in  cjuestion.  Form  T\^,  fol- 
lows ). 

B}'  acting  upon  the  suggestions  made  and  using  the  forms 
as  set  forth,  a  creditor  in  bankruptcy  holding  a  conditional  con- 
tract of  sale  may  file  his  own  petition  in  any  bankruptcy  court 
in  the  United  States,  and  can  usually  carry  through  the  pro- 
ceeding himself,  and  secure  possession  of  his  property  or  pay- 
ment in  full. 


BANKRUPTCY.  515 

FORM    I. 

LETTER  TO  REFEREE. 


Feb.  5,  1917. 

Hon.  \\'m.  H.  Hotchkiss,  Referee,  Buffalo,  N.  Y. 
In  Re:  Henry  J.  Barton.  Buffalo,  N.  Y. 

Dear  Sir : 

A  notice  for  first  meetins.^-  of  creditors  in  this  party's  bank- 
ruptcy has  been  received.  We  desire  to  inform  you  he  con- 
tracted on  March  22,  191 5,  for  a  scale,  such  contract  being  one 
of  conditional  sale  by  which  all  title  is  retained  in  Buffalo  Scale 
Company  until  full  ])ayment  made.  The  amount  of  this  con- 
tract was  $250.00;  he  paid  $40.00  cash,  freight  and  cartage  and 
gave  notes  for  $210.00  referring  to  the  contract.  These  notes 
are  described  as  follows:  Three  for  $35.00  each,  due  July, 
September  and  Xoveml^er  8,  1915,  which  have  been  paid;  note 
$35.00  due  January  8.  1916.  note  $35.00  due  March  8.  1916.  and 
note  $35.00  due  May  8.  1916,  which  have  not  been  paid,  making 
a  balance  of  $105.00.  Under  the  laws  of  your  state  we  are 
either  entitled  to  possession  of  the  scale  or  payment  of  this  bal- 
ance, and  we  shall  be  pleased  to  file  with  you  at  an  early  date 
a  petition  of  intervention  asking  for  this  relief.  W'e  enclose 
herewith  a  copy  of  the  contract  in  (piestion  so  that  you  may 
know  its  e.xact  terms,  and  we  ask  \ou  kindly  do  not  allow  the 
scale  to  be  disposed  of  until  the  (|ucstiiin  of  title  is  determined. 

Yours  truly. 

Buft'alo  Scale  Co.. 

Bv  T.  L.  R. 


5l6  CONDITIONAL  SALES. 

FORM  II. 
PETITION  OF  INTERVENTION. 


IN  THE  DISTRICT  COURT  OF  THE  UNITED  STATES 
FOR  THE  NORTHERN  DISTRICT  OF  TEXAS. 

In  the  Matter  of 
Geo.  H.  Moore, 
Bankrupt. 

To  Hon.  K.  K.  Leggett,  Referee  : 

The  petition  of  Buffalo  Scale  Company  of  Buffalo,  N.  Y., 
same  being  a  corporation  duly  organized  under  the  laws  of  the 
State  of  New  York,  respectfully  presents: 

That  prior  to  the  adjudication  of  the  above  named  bank- 
rupt the  said  Buffalo  Scale  Company  entered  into  a  contract 
in  writing  with  the  said  bankrupt  of  Stamford,  Texas,  such 
contract  being  dated  February  lo,  191 5,  whereby  a  certain  scale 
was  to  be  delivered  to  him  upon  the  following  terms,  to  wit: 

It  was  agreed  the  sum  of  $75.00  should  be  paid  for  said 
scale ;  that  title  to  scale  should  remain  in  Buffalo  Scale  Com- 
pany until  the  amount  as  therein  specified  had  been  paid  in 
full,  as  will  appear  by  certified  copy  of  said  contract,  which  is 
hereto  attached  and  made  a  part  hereof,  marked  Exhibit  "A." 
The  contract  in  question  was  duly  filed  for  record  with  the 
Clerk  of  County  Court,  Jones  County,  Texas,  on  February  25, 
1915- 

The  scale  in  question  was  delivered  to  said  bankrupt,  who 
paid  $25.00  cash  but  never  gave  the  notes  as  provided  for  by 
the  contract. 

The  scale  in  question  has  been  scheduled  by  the  bankrupt 
as  a  part  of  his  stock  and  estate,  and  Buffalo  Scale  Company 
hereby  assert  they  are  the  owners  and  entitled  to  possession 


BANKRUPTCY.  517 

of  the  scale  described  in  Exhibit  "A"  or  payment  of  the  bal- 
ance unpaid  under  said  contract. 

WHEREFORE,  Your  petitioner  prays  that  an  order  be 
made  directing  trustee  of  bankrupt's  estate  to  pay  $50.00  or 
deliver  said  scale  to  your  petitioner  and  for  such  other,  further 
or  different  relief  as  to  the  court  seems  just. 

Buffalo  Scale  Company, 

By  Theodore  L.  Richmond, 

President. 


State  of  New  York,  ) 

>  ss. '. 
County  of  Erie.  \ 

Theodore  L.  Richmond,  being  duly  sworn,  says  he  is  the 
president  of  the  Buffalo  Scale  Company,  petitioner;  that  he 
has  read  the  foregoing  petition  and  knows  the  contents  thereof 
and  that  same  is  true  to  his  knowledge  as  to  all  matters  therein 
alleged,  except  those  stated  to  be  alleged  on  information  and 
belief  and  as  to  those  matters  he  believes  it  to  be  true. 

Theodore  L.  Richmond. 


Subscribed  and  sworn  to  before  me 
this  I2th  day  of  July,  1917. 

(  NOTARIAL   ) 
I         SEAL.       i 


Henry  W.  Carr, 

Notary  Public  in  and 

for  Erie  Co.,  N.  Y. 


5l8  CONDITIONAL  SALES 

FORM  III. 

PETITION  OF  INTERVENTION. 


IN  THE  DISTRICT  COURT  OF  THE  UNITED  STATES 
FOR  THE  EASTERN  DISTRICT  OF  OKLAHOMA- 

In  the  Matter  of 
John  T.  Hendricks, 
Bankrupt. 

To  Hon.  Ezra  Brainard,  Referee: 

The  petition  of  Buffalo  Scale  Company  of  Buffalo,  N.  Y., 
same  being  a  corporation  duly  organized  under  the  laws  of  the 
State  of  New  York,  respectfully  represents : 

That  prior  to  the  adjudication  of  the  above  named  bank- 
rupt the  said  Company  entered  into  a  contract  in  writing  with 
the  said  bankrupt  of  Muskogee,  Okla..  such  contract  being  dated 
August  19,  191 5,  whereby  a  certain  scale  was  to  be  delivered  to 
him  upon  the  following  terms,  to-wit : 

It  was  agreed  the  sum  of  $120.00  should  be  paid  for 
said  scale ;  that  title  to  scale  should  remain  in  Buffalo  Scale 
Company  until  the  amount  as  therein  specified  had  been  paid 
in  full,  as  will  appear  by  certified  copy  of  said  contract  which  is 
hereto  attached  and  made  a  part  hereof,  marked  Exhibit  "A". 
The  contract  in  question  was  duly  filed  for  record  with  the 
Register  of  Deeds.  County  of  Muskogee.  Okla.,  on  September 
9.   19^5- 

The  scale  in  question  was  delivered  to  said  bankrupt,  who 
paid  $20.00  cash  and  gave  notes  for  $100.00,  described  as  fol- 
lows : 

$20.00  due  October  6,  19 15. 

$20.00  due  December  6,  19 15. 

$20.00  due  February  6,  19 16. 


BANKRUPTCY. 


519 


$20.00  due  April  6,  1916. 

$20.00  due  June  6,  191 6. 

Of  these  notes  the  one  for  $20.00  due  October  6,  191 5  and 
the  one  for  $20.00  due  December  6,  191 5,  have  been  paid,  the 
other  notes  have  not  been  paid  and  copies  of  said  unpaid  notes 
are  hereto  attached,  marked  Exhibits  "B,  C  and  D,"  respec- 
tively. 

The  scale  in  question  has  been  scheduled  by  the  bankrupt 
as  a  part  of  his  stock  and  estate,  and  Buffalo  Scale  Company 
hereby  assert  they  are  the  owners  and  entitled  to  possession  of 
the  scale  described  in  Exhibit  "A"  or  payment  of  the  balance 
as  represented  by  the  contract  and  notes  above  described. 

WHEREFORE  your  petitioner  prays  that  an  order  be  made 
directing  trustee  of  bankrupt's  estate  to  pay  $60.00  or  deliver 
said  scale  to  your  petitioner  and  for  such  other,  further  or  dif- 
ferent relief  as  to  the  court  seems  just. 

Buffalo  Scale  Company, 
By  Theodore  L.  Richmond, 

President. 

State  of  New  York,  i 
County  of  Erie.  \ 

Theodore  L.  Richmond,  being  duly  sworn,  says  he  is  the 
president  of  the  Buffalo  Scale  Company,  petitioner ;  that  he 
has  read  the  foregoing  petition  and  knows  the  contents  thereof 
and  that  same  is  true  to  his  knowledge  as  to  all  matters  therein 
alleged,  except  those  stated  to  be  alleged  on  information  and 
belief  and  as  to  those  matters  he  believes  it  to  be  true. 

Theodore  L.   Richmond. 
Subscribed  and  sworn  t(j  before  me  this 

1 2th  day  of  July.   1917. 

\  .NOTARI.M.     ) 
/  SEAL.  \^ 

Henrv  W.  Cakr, 

Notary  Public  in  and 

for  Erie  Co.,  N.  Y. 


520  CONDITIONAL  sAlES 

FORM  IV. 
ORDER. 


IN  THE  DISTRICT  COURT  OF  THE  UNITED  STATES 

FOR  THE  SOUTHERN  DISTRICT  OF  GEORGIA, 

SOUTHWESTERN  DIVISION. 

In  the  Matter  of 
Snyder  Bros., 
Bankrupts. 

At  Valdosta,  Ga.,  on  the  20th  day  of  November,  19 17. 
Upon  application  of  Buffalo  Scale  Company,  by  petition  of  inter- 
vention heretofore  filed,  asking  for  delivery  of  a  certain  scale 
or  payment  of  $51.50,  as  represented  by  said  contract. 

It  is  ordered,  that  James  Edward  Means,  trustee  for  said 
bankrupt's  estate,  pay  to  said  Buffalo  Scale  Company  the  sum 
of  fifty-one  dollars  and  fifty  cents  ($51.50).  (Deliver  to  said 
Buffalo  Scale  Company  the  scale  in  question.) 


Referee  in  Bankruptcy. 


FIXTURES. 


The  question  as  to  what  rights  a  conditional  sale  vendor 
shall  have  where  the  property  he  sells  becomes  attached  to  real 
estate,  has  been  widely  litigated.  Only  a  comparatively  small 
number  of  states  have  a  statutory  regulation  on  this  subject, 
(Massachusetts,  New  York,  Oregon,  Pennsylvania  and  Texas), 
but  court  decisions  have  varied  the  rule,  from  holding  that  the 
slightest  attachment  of  such  property  constituted  a  fixture,  to 
the  other  extreme  presented,  where  a  most  substantial  attach- 
ment was  decided,  not  to  constitute  such  property  a  part  of 
real  estate. 

The  more  recent  tendency  has  been  to  hold  that  property 
covered  by  a  conditional  sale  agreement,  which  becomes  at- 
tached to  real  estate,  shall  not  be  considered  a  fixture  unless 
same  becomes  an  actual  or  integral  part  of  the  real  estate  to 
which  it  is  attached.  An  example  would  be  that  of  a  brick,  a 
beam,  or  sand  and  cement  that  actually  loses  identity  in  the 
construction  of  such  buildings.  The  United  States  Supreme 
Court  has  recently  established  this  rule  by  two  most  impor- 
tant decisions.    A  synopsis  of  each  is  given  below. 

Not  a  Fixture. 

A  sprinkling  system  was  installed  in  Virginia  under  a  con- 
ditional sale  contract,  which  provided  that  title  thereto  should 
remain  in  vendor  until  paid  for,  and  that  such  personal  property 
should  not  become  a  fixture  even  though  attached  to  real 
estate.  The  system  consisted  of  a  50,000  gallon  tank  upon  a 
steel  tower  which  was  bolted  to  a  concrete  foundation,  and 
pipes  connected  the  tank  with  a  sprinkler  system  in  a  mill  lo- 

521 


522  CONDITIONAL   SALES 

cated  near  the  tank.  (Nothing  said  in  the  opinion  about  the 
sprinkler  system  in  the  mill  itself,  being  pipes  and  valves  at- 
tached to  the  building,  as  to  whether  or  not  that  part  of  the 
plant  had  been  furnished  under  the  contract  of  conditional  sale, 
along  with  the  tank  and  tower).  The  conditional  sale  contract 
was  not  docketed  as  provided  by  the  laws  of  Virginia. 

While  the  system  was  being  installed,  the  conditional  sale 
vendee  (the  owner  of  the  real  estate  upon  which  it  was  placed), 
executed  a  mortgage  which  covered  the  real  estate  where  the 
system  was  being  erected,  and  this  mortgage  contained  an  after 
acquired  property  clause.  Such  vendee  and  mortgagor  later 
became  bankrupt,  with  the  conditional  sale  contract  and  the 
mortgage  unpaid,  and  the  question  arose  between  the  vendor 
of  the  sprinkling  system,  the  mortgagee  under  the  real  estate 
mortgage,  and  the  vendee's  trustee  in  bankruptcy  as  to  who  had 
priority.  The  conditional  sale  contract  had  been  executed  prior 
to  the  amendment  of  1910  to  the  bankruptcy  law.  Held  the  con- 
ditional sale  vendor  was  entitled  to  remove  its  property,  as  it 
had  not  become  an  irremovable  fixture  upon  the  real  estate,  and 
this  would  also  be  true  even  though  the  real  estate  mortgage 
had  been  executed  after  the  system  had  been  installed  and 
completed. 

The  opinion  states  substantially,  that  a  conditional  sale 
vendor  who  has  taken  security  under  such  a  contract  before  he 
parts  with  possession,  is  entitled  to  have  such  contract  enforced, 
even  though  the  personal  property  it  covers  may  have  been  fas- 
tened to  real  estate,  provided  it  shall  not  have  become  an  in- 
tegral part  of  such  real  estate,  and  even  though  the  usefulness 
of  such  real  estate  is  impaired  by  its  removal,  and  even  though 
such  real  estate  may  be  incumbered  by  a  mortgage  taken  in 
good  faith  for  value  and  without  notice  of  the  conditional  sale 
contract,  either  prior,  or  subsequent  to  such  conditional  sale 
contract.     Holt  v.  Henley,  232  U.  S.  637. 

Tanks  and  fittings  for  a  brewery  in  West  Virginia  were 
furnished  under  a  conditional  sale  contract,  retaining  all  title 
in  vendor  until  paid  for,  and  further  providing  that  same  might 


FIXTURES.  523 

be  removed  upon  default.  This  contract  was  made  on  August 
8th,  1908,  and  duly  recorded  in  West  Virginia  on  December 
7th,  1908.  Before  the  making  of  such  contract  the  brewery 
company  had  mortgaged  its  land,  brewery  and  all  the  build- 
ings, machinery  and  appliances  thereon,  erected,  or  to  be 
erected,  and  that  mortgage  had  been  recorded.  Default  was 
made  upon  the  real  estate  mortgage,  and  a  foreclosure  was 
brought  upon  it :  but  the  vendor  of  the  tanks  was  not  made  a 
party. 

A  receiver  was  a])pointed  for  all  the  property  including 
the  tanks,  and  a  day  of  sale  set.  when  the  vendor  of  such  tanks 
sued  out  a  bill  in  equity  in  the  United  States  Court  in  West 
Virginia  to  restrain  such  sale,  and  asked  for  a  return  of  its 
property.  The  chief  points  contended  for  in  opposition  to  such 
bill  were,  that  the  tanks  were  absolutely  essential  to  the  work- 
ing of  the  brewery,  that  same  had  become  irremovable  fixtures 
in  the  buildings,  and  could  not  be  taken  out,  that  the  real  prop- 
erty was  covered  by  a  mortgage  when  the  tanks  were  placed 
upon  it  and  they  became  subject  to  its  lien. 

ft  was  shown  that  the  tanks  were  firmly  attached  to  the 
real  estate,  and  that  certain  portions  of  the  sides  of  the  build- 
ings must  be  removed  in  order  to  get  them  out.  (The  vendor 
offered  to  pay  the  expenses  of  repairing  such  walls  after  the 
tanks  were  out).  The  United  States  Supreme  Court  held,  the 
vendor  was  entitled  to  possession  of  his  jiroperty  as  against 
the  mortgagee,  and  the  rule  was  stated,  that  where  a  conditional 
sale  vendor  has  made  comjiliance  with  the  laws  of  the  state 
wlicrc  the  pr()])erty  is  delivered  ;  then  no  matter  how  essential 
it  may  be  to  the  working  whole  of  that  building  and  its  con- 
tents, and  no  matter  how  firmly  attached  it  may  be  made  to 
the  building  or  to  the  real  estate,  still  if  it  become  not  an  essen- 
tial i)art  of  the  building,  such  as  a  brick  or  a  beam,  losing  its 
identity,  it  may  be  removed  by  the  vendor  upon  default. 
Detroit  Steel  Co.  v.  Sistors\  ilk-  r.rcwing  Co..  233  I'.  S.  712. 


524  CONDITIONAL  SALES 


REMEDIES. 


Where  a  vendee  under  conditional  sale  contract  defaults, 
it  should  be  clearly  understood  by  the  vendor  that  he  is  not 
ordinarily  confined  to  one  of  three  remedies  to  wit : 

First — An  action  for  a  money  judgment  upon  the  contract. 

Second — An  action  for  possession  of  the  property. 

Third — An  action  in  conversion  or  trover  for  damages. 

Such  a  contract  carries  a  lien  for  securing  the  purchase 
price  of  the  property  covered  by  it,  and  in  practically  every 
state  the  vendor  may  bring  an  action  in  equity  to  foreclose  such 
common  law  lien.  Through  such  course  the  vendor  avoids  any 
necessity  for  repaying  a  portion  of  the  purchase  price,  which 
may  have  been  paid  in  by  the  vendee ;  or  of  advertising  and  sell- 
ing the  property  at  auction  within  a  stated  time,  and  of  ac- 
counting for  any  balance  over  and  above  his  debt,  as  in  others. 

Perhaps  the  most  important  advantages  to  be  gained  by 
such  action,  arise  in  those  instances  where  the  property  has  be- 
come attached  to  real  estate  in  such  a  manner  as  to  make  it  a 
fixture;  the  vendee  is  worthless,  and  material  injury  would  be 
done  to  the  real  estate,  or  to  the  property  covered  by  the  con- 
tract or  to  both  ;  if  possession  of  such  property  were  required 
by  vendor  upon  default. 

It  has  been  almost  uniformly  held  by  the  courts,  in  actions 
for  actual  physical  possession  under  such  circumstances,  that 
same  cannot  be  maintained  ;  but  by  a  proceeding  to  foreclose 
such  lien  the  rights  and  equities  of  all  parties  concerned  can  be 
adjudicated.  In  most  instances  the  property  will  be  ordered 
sold  to  satisfy  the  balance  of  the  purchase  price,  but  in  case 

525 


526  CONDITIONAL  SALES 

it  shall  have  become  so  identified  with  other  property  (fixture 
on  real  estate)  that  it  cannot  be  sold  separately  without  great 
injury  to  itself,  or  to  the  other  property,  or  to  both;  then  the 
party  so  benefiting  will  usually  be  obliged  to  pay  the  balance  on 
the  contract,  if  that  sum  is  less  than  the  value  of  such  property; 
or  in  case  the  value  of  the  said  property  is  less  than  the  balance 
unpaid  on  the  contract,  then  the  value  of  such  property  will 
be  the  measure  of  damages.  Gigray  v.  Mumper,  141  la.  396, 
118  N.  W.  393;  Boynton  v.  Payrow,  67  Me.  587;  Ross-Meehan 
etc.  Co.  V.  Pascagoula  Ice  Co.,  72  Miss.  608,  18  So.  364;  Wolf 
&  Co.  V.  Hermann  etc.  Bk.,  168  Mo.  App.  549,  153  S.  W.  1094; 
Briggs  V.  Oliver,  68  N.  Y.  336;  Lembeck  etc.  Brewing  Co.  v. 
Sexton,  184  N.  Y.  185,  'j'j  N.  E.  38;  Crump  v.  Wissner.  163 
A.  D.  47,  148  N.  Y.  S.  401  ;  Singer  Sewing  Machine  Co.  v. 
Leipzig  et  al,  113  N.  Y.  S.  916;  Simpson  Crawford  Co.  v. 
Knight,  130  N.  Y.  S.  236;  Bloomingdale  et  al  v.  Braun,  80  Misc. 
527,  141  N.  Y.  S.  590;  Pease  Piano  Co.  v.  Fiske,  145  N.  Y.  S. 
978;  Ouattrone  v.  Simon,  85  Misc.  357,  147  N.  Y.  S.  448;  Hauss 
V.  Savarese,  87  Misc.  330,  149  N.  Y.  S.  938;  Wetherill  v.  Gal- 
lagher. 211  Pa.  306,  60  Atl.  905;  Campbell  Printing  Press  Co. 
V.  Powell,  78  Tex.  53,  14  S.  W.  245;  In  re:  National  Cash 
Register  Co.,  174  Fed.  579  (Ohio). 


SUBSCRIBING  WITNESS. 


In  connection  with  the  subject  of  conditional  sales  and  the 
proper  perfecting  of  such  contracts  in  the  several  states  so  that 
a  vendor's  rights  may  be  protected,  the  question  of  having  a 
subscribing  witness,  or  witnesses,  upon  the  instrument  is  impor- 
tant and  seems  not  to  be  well  understood. 

A  subscribing  witness  is  never  necessary  on  a  conditional 
sale  contract  in  states  where  no  recording  or  filing  is  required. 
It  is  only  in  those  states  making  provision  for  recording  or 
filing  of  such  contracts,  that  the  witness  question  becomes  impor- 
tant, and  not  in  all  of  these.  As  a  general  rule  no  written  con- 
tract of  any  nature  can  be  recorded,  as  distinguished  from  being 
filed,  with  a  county  clerk,  or  register  or  other  like  officer,  until' 
it  shall  have  been  proven  or  acknowledged  by  the  oath  of  some 
person-  The  object  being  to  make  such  records  authentic.  It 
is  many  times  not  convenient  to  secure  the  personal  acknowl- 
edgment of  a  conditional  sale  vendee  upon  his  contract,  and  at 
least  one  state.  South  Carolina,  does  not  provide  for  personal 
acknowledgment  by  a  vendee,  but  recognizes  only  ])roof  by 
witness. 

It  is  therefore  recommended  that  in  Georgia,  Missouri,  New 
Jersey.  North  Carolina  and  Mississippi,  one  person  should  always 
sign  the  contract  as  a  witness  to  the  vendee's  signature,  and  in 
Kentucky  and  South  Carolina,  two  persons  should  sign  as  wit- 
nesses to  the  vendee's  signature,  either  one  of  whom  may  later 
prove  said  signature  by  his  oath. 

In  b'kjrida  there  should  always  be  two  subscribing  witnesses 
to  the  vendor's  signature.     In  the  State  of  North   Dakota   and 


527 


528  CONDITIONAL  SALES. 

South  Dakota  the  law  is  not  definitely  settled  on  the  witness 
question;  but  as  there  is  no  provision  for  personal  acknowledg- 
ment of  conditional  sale  contracts  in  these  states  so  that  same 
may  be  filed,  the  safe  and  sure  rule  is  to  have  two  witnesses  to 
the  vendee's  signature,  after  which  there  may  be  a  proper  filing 
and  the  vendor  will  be  protected  absolutely. 


DEFINITIONS  OF  TERMS  USED. 


ACKNOWLEDGMENT 


The  act  by  which  a  party  to  an  in- 
strument avows  before  a  notary  public 
or  other  authorized  officer  that  he 
executed  the  same.  The  term,  is  also 
applied  to  the  certificate  of  such  officer 
that  the  party  has  so  avowed  his 
execution  of  the  instrument.  This 
certificate  or  acknowledgment  is  writ- 
ten on,  or  attached  to  the  instrument, 
and  is  prima  facie  evidence  of  its  due 
execution. 


An  instrument  must  usually  be 
acknowledged  before  it  will  be  ad- 
mitted to  public  registry  or  record. 
Acknowledgment  is  also  necessary  to 
some  instruments  before  they  are 
legally  effective. 


ACTION 


The  prosecution  of  some  demand 
or  cause  in  a  court  of  justice.  A  suit 
in  a  court. 


AFFIDAVIT 


A  signed  statement  in  writing. 
sworn  to  before  an  officer  authorized 
to  administer  an  oath. 


AGENT 

OR  ATTORNEY 


A  person  authorized  to  act  for  an- 
other. 


529 


530 
ASSIGNEE 


CONDITIONAL   SALES 


One  to  whom  some  right  in  prop- 
erty is  assigned  or  transferred. 


ASSIGNMENT 


A  making  over  or  transfer  of  per- 
sonal property  for  a  consideration. 


ASSIGNOR 


One  who  makes  some  transfer  of 
property  to  an  assignee. 


ATTACHMENT 


ATTESTED 


The  legal  process  by  which  property 
is  taken  into  the  custody  of  the  law, 
and  held  to  satisfy  any  judgment 
which  may  be  obtained  later  on  against 
the  owner  of  such  property. 

Signed  by  one  or  more  subscribing 
witness,  or  witnesses. 


AUTHENTICATED 
COPY 


One  which  has  been  compared  with 
the  original  by  a  county  clerk,  or 
recorded,  or  other  like  officer,  and  is 
declared  by  him  under  his  seal  to  be 
an  exact  copy. 


BAILEE 


The  person  who  receives  property 
under  a  bailment. 


BAILMENT 


The  transfer  of  possession  of  per- 
sonal property  for  a  limited  time,  as  in 
a  loan,  a  pledge,  a  letting  for  hire,  a 
deposit  of  property  for  storage.  In 
bailment  there  is  always  the  agree- 
ment, express  or  implied,  that  the 
property  be  returned  when  the  pur- 
pose for  which  it  was  delivered  has 
been  fulfilled. 


DEFINITION  OF  TERMS  USED. 


531 


BAILOR 

BREACH 

OF  CONTRACT 

CERTIFIED  COPY 


CHATTEL 
MORTGAGE 


CITATION 


CONDITIONAL 
CONTRACT 
OF  SALE 

CONDITIONAL 
SALE 


The  person  who  delivers  property 
under  bailment. 

That  act,  or  failure  to  act,  by  which 
the  terms  of  a  contract  are  violated  or 
are  not  complied  with. 

As  used  in  this  work  the  expression 
means  a  copy  to  which  some  person 
has  made  oath  that  it  is  a  correct  copy 
of  the  original. 

A  lien  given  upon  personal  prop- 
erty by  the  owner  as  security  for  the 
payment  of  a  debt,  or  for  the  perform- 
ance of  some  other  obligation.  Upon 
default  such  lien  may  be  perfected 
into  an  absolute  title  by  foreclosure 
and  sale. 

As  used  in  this  work  the  word 
means  the  authority,  either  statute  law 
or  court  decision,  upon  which  the 
author  relies  as  establishing  the  rule 
laid  down  on  any  subject. 

The  written  instrument  by  which 
the  agreements  of  a  conditional  sale 
are  evidenced. 

That  form  of  contract  by  which, 
while  the  title  and  ownership  of  prop- 
erty rest  in  one  person,  called  the 
vendor,  it  is  agreed  that  upon  the  pay- 
ment of  a  certain  sum  of  money,  or 
the  performance  of  other  certain 
specified  acts  by  or  on  behalf  of  an- 
other person,  called  the  vendee,  the 
title  and  ownership  of  such  property 
shall  pass  from  the  vendor  to  the 
vendee. 


532 
CONVERSION 

CRIME 


DECLARATION 


DEMURRER 


DISCHARGE 


CONDITIONAL   SALES 

The  unauthorized  assumption  or 
exercise  of  acts  of  ownership  over  the 
personal  property  of  another. 

As  defined  by  New  York  law,  a 
crime  is  an  act  or  omission  forbidden 
by  law  and  punishable  upon  conviction 
by 

(i)  Death,  or  (2)  imprisonment, 
or  (3)  fine,  or  (4)  removal  from 
office,  or  (5)  disqualification  to  hold 
any  office  of  trust,  honor  or  profit 
under  the  state,  or  (6)  other  penal 
discipline. 

Crime  is  either  a  felony  or  a  mis- 
demeanor. Felony  is  a  crime  which 
is  or  may  be  punishable  by  either  death 
or  imprisonment  in  a  state  prison. 
Misdemeanor  is  any  other  crime. 

As  used  in  this  work,  means  a 
formal  statement,  usually  required  to 
be  in  writing. 

An  allegation  in  an  action  admitting 
the  preceding  pleading  to  be  true,  but 
insisting  that  the  facts  as  set  forth  in 
said  pleadings  are  insufficient  in  law 
to  require  an  answer  or  constitute  a 
cause  of  action. 

As  used  in  this  work  the  word  re- 
fers to  the  act,  or  instrument,  by  which 
the  lien  of  a  filed  or  recorded  contract 
of  conditional  sale  is  relinquished,  or 
surrendered,  so  that  it  is  no  longer  an 
encumbrance  upon  the  property. 


DEFINITION  OF  TERMS  USED. 


533 


EMBEZZLEMENT 


EXECUTED 


EXECUTION 


EXECUTORY 


FILING 


INNOCENT 
THIRD  PARTY 


The  fraudulent  appropriation  of  the 
property  of  another  by  one  who  is 
entrusted  with  its  possession. 

As  applied  to  an  instrument  means 
that  the  signing,  or  signing  and 
acknowledgment  has  been  completed- 

As  used  in  this  work,  means  the 
writ  or  authority  by  virtue  of  which 
the  judgment  of  a  court  is  enforced. 

As  used  in  this  work,  means  not 
completed,  unfinished. 

As  used  in  this  work,  refers  to  the 
act  by  which  the  original  contract  of 
conditional  sale  or  a  true  copy,  or  a 
memorandum  thereof,  is  placed  in  the 
custody  of  the  filing  officer.  The 
names  of  the  parties  to  such  contract 
are  indexed  in  a  book,  but  the  text  or 
contents  of  such  contract  is  not  writ- 
ten out  in  any  record  book. 

As  used  in  this  work,  the  expres- 
sion means  a  person  who,  paying  a 
valuable  and  adequate  consideration 
therefor,  buys  or  takes  a  lien  on  prop- 
erty conditionally  sold  without  knowl- 
edge sufficeint  to  put  him  on  enquiry 
as  to  the  true  status  of  such  property. 
So  also  "a  bona  fide  purchaser  for 
value." 


INSTRUMENT 


As  used  in  this  work  the  word 
means  a  written  agreement,  or  any 
formal  document. 


534 
INTERVENE 


CONDITIONAL  SALES 


The  act  by  which  an  interested  per- 
son not  already  made  a  party  thereto, 
asserts  his  right  to  be  heard  in  a  legal 
proceeding  with  others. 


JUDGMENT 


The  final  decision  by  a  court  of  the 
matters  at  issue  in  a  particular  case. 


JUDICIAL 
DETERMINATION 


As  used  in  this  work,  the  expres- 
sion means  the  decision  of  a  court  as 
expressed  in  a  judgment. 


LARCENY 


The  felonious  taking  and  carrying 
away  of  the  goods  or  property  of  an- 
other. When  the  property  taken  has 
a  value  equal  to  or  more  than  a  cer- 
tain amount  fixed  by  statute,  and 
varying  in  the  different  states,  it  is 
known  as  grand  larceny.  When  the 
value  is  less  than  this  amount,  the 
offense  is  known  as  petty  larceny. 


LEASE  (Noun) 


The  agreement  whereby  the  posses- 
sion and  use  of  property  is  transferred 
for  a  time  for  compensation- 


LEASE  (Verb) 


To  give  another  temporary  posses- 
sion and  use  of  property  for  com- 
pensation. 


LESSEE 


The  person    who    leases    property 
from  another. 


LESSOR 


The  person  who  leases  property  to 
another. 


DEFINITION  OF  TERMS  USED. 


535 


LEVY 


The  taking  or  seizure  of  property 
under  an  execution  to  satisfy  a  judg- 
ment. 


LIEN 


MAKES  OATH 


A  charge  imposed  upon  specific 
property  by  which  it  is  made  security 
for  the  payment  of  a  debt,  or  the 
performance  of  an  act. 

Swears  to  or  affirms. 


MISDEMEANOR 


The  common  understanding  of  the 
term  is  a  small  or  petty  crime.  (See 
Crime.) 


MORTGAGE 
MORTGAGEE 


(See  Chattel  Mortgage.) 

The  person  to  whom  a  mortgage  is 
given. 


MORTGAGOR 


The  person   giving  or   executing   a 
mortgage. 


NEGOTIABLE 
INSTRUMENT 


An  instrument  to  be  negotiable  must 
conform  to  the  following  require- 
ments : 

I.  It  must  be  in  writing  and  signed 
by  the  maker  or  drawer. 

2-  Must  contain  an  unconditional 
promise  or  order  to  pay  a  sum  certain 
in  money. 

3.  Must  be  payable  on  demand,  or 
at  a  fixed  or  determinable  future  time. 

4.  Must  be  payable  to  order  or 
bearer,  and 


536 


CONDITIONAL  SALES 


5.  Where  the  instrument  is  ad- 
dressed to  a  drawee,  he  must  be  named 
or  otherwise  indicated  therein  with 
reasonable  certainty.  Negotiable  In- 
struments Law  (§  20)  of  the  State  of 
New  York. 


NEGOTIABLE 
PAPER 


This  term  includes  all  those  instru- 
ments which  are  transferable  by  in- 
dorsement or  delivery,  so  as  to  vest  in 
the  transferee  the  legal  title  and  enable 
him  to  maintain  an  action. 


PLEDGE 


A  bailment  or  delivery  of  goods  by 
a  debtor  to  his  creditor,  to  be  kept 
until  the  debt  is  discharged,  or  until 
the  pledgee  is  entitled  to  dispose  of 
the  property  to  satisfy  the  debt. 


PLEDGEE 


The  party  to  whom  delivery  is  made 
under  the  pledge. 


PLEDGOR 


PRIVILEGE 


PRIVILEGED 
DEBT 


The    party    making 
under  a  pledge. 


the     delivery 


A  right  which  the  nature  of  a  debt 
gives  to  a  certain  creditor  entitling  him 
to  be  preferred  before  other  creditors. 

A  debt,  the  nature  of  which  gives  it 
precedence  in  payment  over  other 
debts. 


PROOF 

BY  WITNESS 


The  verification  of  an  instrument  by 
a  subscribing  witness,  who,  before  a 
notary  public  or  other  like  officer, 
swears  to  the  due  execution  of  such 
instrument   and   to   the   fact   that   he 


DEFINITION  OF  TERMS  USED. 


537 


signed  the  same  as  a  subscribing  wit- 
ness- Such  proof  in  many  states 
entitles  the  contract  to  be  filed  or 
recorded,  as  the  case  may  be,  without 
acknowledgment  by  the  vendee  in  per- 
son. 


PURCHASER 
FOR  VALUE 


(See  Innocent  Third  Party.) 


RECORDING 


REDEMPTION, 
RIGHT  OF 


The  act  by  which  the  proper  officer 
receives  into  his  custody  any  paper,  or 
instrument  entitled  to  be  recorded,  and 
does  thereafter  cause  the  text  of  such 
paper  to  be  transcribed  into  the  book 
or  books  kept  in  his  office  for  that 
purpose.  Recording  also  includes  in- 
dexing the  names  of  the  parties  for 
ready  reference. 

The  privilege  enjoyed  under  some 
circumstances  by  a  party  whose  prop- 
erty has  been  sold,  to  redeem,  or  re- 
purchase, same  within  an  expressly 
limited  time  after  such  sale. 


RELEASE 


REPLEVIN 


SATISFACTION 


The  act  or  writing  by  which  some 
claim  or  interest  is  surrendered  to  an- 
other.    (See  Discharge.) 

Is  an  action  for  the  recovery  of  pos- 
session of  personal  property  wrong- 
fully taken  or  detained  with  or  with- 
out the  damages  which  the  wrongful 
taking  or  detention  has  occasioned. 

The  payment  or  cancellation  of  a 
legal  debt  or  demand. 


538 
STATUTE 


CONDITIONAL   SALES 

A  law  passed  by  a  legislative  body. 


SUBSCRIBING 
WITNESS 


A  person  who,  being  present  when 
a  contract  or  instrument  in  writing  is 
executed,  signs  his  name  as  a  witness 
thereto  by  permission  or  request. 


TENDER 


The  offer  of  money  in  satisfaction 
of  a  debt,  by  producing  and  offering 
the  amount  to  the  creditor  or  party 
claiming,  and  stating  verbally  a  will- 
ingness to  pay. 


THIRD  PARTIES 


As  used  in  this  work,  the  term  in- 
cludes all  those  persons,  companies  or 
corporations  other  than  the  parties  to 
a  conditional  contract  of  sale,  who  be- 
come in  any  manner  interested  in  the 
property  sold  under  such  contract, 
either  by  purchase  of  same  from  the 
vendee,  or  by  accepting  a  mortgage  or 
other  like  lien  upon  it,  or  in  having 
the  said  property  or  the  proceeds  of 
same  applied  to  payment  of  their 
debts- 


TITLE 


Signifies  the  means  whereby  a  per- 
son's right  to  property  is  established. 
It  is  the  foundation  on  which  rests  the 
ownership  of  property. 


TRUSTEE  IN 
BANKRUPTCY 


A  person  chosen  by  the  creditors 
with  the  approval  of  the  bankruptcy 
court,  whose  duty  it  is  to  administer 
the  estate  of  the  bankrupt. 


DEFINITION  OF  TERMS  USED.  539 

VALID  Legal  or  enforceable. 

VENDEE  The  purchaser  or  buyer. 

VENDOR  The  seller. 

WAIVE  As  used   in  this  volume,  to   inten- 

tionally    relinquish     or     abandon     a 
known  right. 


540 


CONDITIONAL  SALES. 


INDEX 

(Figures  given  refer  to  pages) 

Alabama   i8.  25.  55-60 

Arizona    18.  25,  61-64 

Arkansas    i?,  26,  65-70 

California     17,  26,  71-74 

Colorado    22,  26,  75-82 

Connecticut    22,  27,  83-88 

Delaware     ly,  2y,  89-92 

District   of   Columbia 17,  22,  28,  93-98 

Florida     21,  28,  99-106 

Georgia    19,  29,  107-116 

Idaho    17.  3O'  1 17-120 

Illinois    23,  30,   121-132 

Indiana    17,  31,   133-136 

Iowa    22,  31,  137-144 

Kansas     18,  31,  145-150 

Kentucky    19.  32,   151-158 

Louisiana    17,  23,  32,  159-168 

Maine    18,  33,   169-174 

Maryland    18,  34,  175-180 

Massachusetts     17.   t8,  34,  181-188 

Michigan    17,  18,  35,  189-194 

Minnesota    18,  35,  195-200 

Mississippi    18,  20,  36,  201-208 

Missouri    20,  37,  209-216 

^Montana    18,  38,  217-220 

541 


542  CONDITIONAL  SALES. 

Nebraska    i8.  38,  221-228 

Nevada  18,  39,  22^232 

New   Hampshire    22,  39,  233-238 

New    Jersey    20,  40,  239-250 

New    Mexico    22,  41,  251-256 

New  York 19.  41,  Analysis  257-272,  273-354 

North    Carolina    20,  41,  355-364 

North    Dakota    20,  42,  365-368 

Ohio    19-43-  369-376 

Oklahoma    19-44,  377-382 

Oregon     18,  44,  383-386 

Pennsylvania    19,  45,  387-404 

Rhode  Island    18,  46,  405-408 

South    Carolina    21,  46,  409-416 

South    Dakota    21,  47,  417-422 

Tennessee    18,  49.  423-430 

Texas    19-49,  431-438 

Utah    18,  49,  439-442 

\'ermont    19.  50.  443-448 

Virginia      19.  50-  449-454 

\\'ashington    19,  51,  455-460 

West  Virginia    19-52.  461-464 

Wisconsin     19-52,  465-474 

Wyoming    19,  53-  475-48o 


INDEX  543 


APPENDIX 

Bankruptcy     51 1-520 

Definitions  of  terms  used .  529-539 

Fixtures 521-524 

Remedies     525-526 

Subscribing  witness    527-528 


FORMS 

Bailment  contracts   499-504 

Conditional  contracts 487-498 

Miscellaneous   forms    509-510 

Practical  suggestions   481-486 

Releases     505-508 


ERRATA 

Page  134,  Indiana,  "can"  in  line  three  (3)  paragraph  "Fixtures," 
should  read  "cannot." 

Page  224.  Missouri,  "cimcumstances"  in  line  five  (5)  paragraph 
"Notes,"  should  read  "circumstances." 

Page  512,  "Bankruptcy,"  in  lines  11  and  12  from  bottom  of  page, 
"contions"  should  read  '"conditions." 


544  CONDITIONAL  SALES. 


INDEX  FOR  NEW  YORK 

(Figures  given  refer  to  pages) 

A 

Acceptance  of  properly  necessary  to  constitute  fixture....  308 

Acknowledgment   or   proof 284 

Action  not  necessary  to  repossess 347 

Assignee  gets  no  title 277 

Attachment  to  building  effect 285,  286,  287 

Attached  to  building  what  is 310 

Attachment  to  building  what  is  not 301-308 

B 

Balance  unpaid  is  measure  of  damages 336 

Blanket   contract   invalid 280 

Bona  fide  purchaser  gets  title 276 

Bona  fide  purchaser  has  burden  of  proof 334 

Bona  fide  purchaser  must  pay  in  full 334 

Bona  fide  purchaser  who  is 300 

Burden  of  proof  on  bona  fide  purchaser 334 

c 

Change  in  property  effect 318 

Chattel  mortgage  given  no  refund  payable 350 

Chattel  mortgage  taken  passes  title 281 

Common  law  lien  may  be  foreclosed 332 

545 


546  CONDITIONAL  SALES. 

INDEX  FOR  NEW  YORK  (Continued) 

Comity    351 

Conditional  sale  invalid  as  to  third  parties 322-326 

Conditional  sale  valid  as  to  third  parties 319-321 

Consignment  what  constitutes 315,  318 

Contractor  vendee  effect 289,  312,  313 

Conversion  will  not  lie  where  property  stolen 336 

Counterclaims    333,  334 

Countermand  remedies  after 277 

Countermand  what  amount  collected  on 335 

Crime    298,  299 

D 

Damages  measure  of 335,  336 

Date  of  repossession,  what  is 349 

Defenses    333,  334 

Delivery   not   made,    effect   on   filing 289 

Demand  when  necessary  before  repossession. 343 

Demand  when  not  necessary  before  repossession 343 

Discharge     297 

Discharge  where  property  attached  to  building 297 

E 

Election  of  Remedies 328-333, 

Endorsement  where  filed  in  New  York  City 287 

Estopple    352 

Executed  how   284 

Execution   of   contract 284 

Execution  sale  not  repossession 348 

Extension  may  be  granted 300 


INDEX  547 

INDEX  FOR  NEW  YORK  (Continued) 

F 

Fee  for  filing 291,  292 

Filing  fee    291,  292 

Filing  necessary  when 288 

Filing  no  protection  when  vendee  contractor 289 

Filing  not  necessary  when 288 

Filing  where  not  attached  to  building 285,  286 

Fire  escapes  constitute  fixtures 311 

Fixtures   .• 301 

Foreclosure  of  common  law  lien  not  reposession 347 

Foreclosure  of  common  law  Hen  permitted 332 

Form  of  contract 281 

Forthwith  must  be  filed 288 

G 

Gas  fixtures  not  part  of  real  estate 307 

H 

Heating  plant  is  fixture 310 

Heating  plant  not  a  fixture 307 

How  executed   284 

I 

Infancy  of  vendee  no  defense  to  replevin 334 

Indorsement  where  filed  in  New  York  City 287 

Inkeeper's  lien  prior 279 


548  CONDITIONAL  SALES. 

INDEX  FOR  NEW  YORK  (Continued) 

J 

Judgment  for  purchase  price  election 330 

L 

Landlord's  lien    313 

Lease  with  option  is  conditional  sale  contract 282 

Legal  status  273 

Leviable  interest 273 

Lien  may  be  foreclosed 332 

Location  of  property  in  New  York  City 287,  288 

Loss,  who  must  bear 301 

M 

Mail  chute  not  attached  to  building 307 

Measure  of  damages 335,  336 

Mechanic's  lien  filed  is  election 330 

Mortgage  of  real  estate  does  not  take  pumps  thereon..     306 

N 

New  York  City 286,  287,  291,  297 

Notes    313-315 

Note  indorsed  is  election 331 

Notes  no  need  to  surrender 314,  315 

Notes  not  payment 3^3 

Notes  presumptive  payment  in  Ind.,  Me.,  Mass.,  Vt. ...     314 
Notice  obviates  filing 289 


INDEX  549 

INDEX  FOR  NEW  YORK  (Continued) 

Notice  of  sale 341 

Notice  same  as  refiling- 296 

o 

Option  in  separate  instrument  effect 283,  284 

Option  to  purchase  in  lease  effect 282 

Oral   contract,   valid 281 

P 

Payment,  extension  and  trade 300 

Payment  when  may  be  made 300 

Personal  injuries  sustained  in  retaking  vendor  liable  for  344 

Plumbing  not  a  fixture 307 

Price  not  collectable  where  no  delivery 335 

Price  when  collectable  after  repossession 349 

Property  not  accepted  cannot  become  fixture 308 

Property  retaken  is  election 328 

R 

Railroad  equipment   351 

Railroad  equipment  what  is  not 352 

Real  estate  mortgage  subsequent 280 

Recording  or  filing 285 

Recoupment  defined 333 

Refiling    292 

Refiling  must  be  made  during  thirty-day  period 297 

Refiling   necessary   as   to   chattel    mortgage   given   after 

first  year   294 


550  CONDITIONAL    SALES. 

INDEX  FOR  NEW  YORK  (Continued) 

Refiling    not    necessary     as     to    chattel     mortgage    given 

during-  first  year 296 

Refiling  not  necessary  as  to  rights  already  fixed 294 

Refiling  unnecessary  where  parties  have  notice 295 

Refiling  where  property  attached  to  building 293,  294 

Refiling  where  property  not  attached  to  building.  .      292,  293 

Refund  after  repossession 336-351 

Refund  right  to  ma}-  be  sold 350 

Refund  when  action  lies  for 349 

Remedies  election  of 328-333 

Remedies  of  vendor  on  countermand 2^"] 

Removal   of  property  efifect 300 

Removal  of  property  from  state  no  bar  to  refund 350 

Renewal    292 

Replevin  gives  possession  when  judgment  entered 348 

Repossession    336-351 

Repossession  without  action  valid 347 

Resale  how  made 336,  337,  340,  341 

Resale  must  follow  statute 346 

Retailer    315-328 

Retake  and  collect  price  when 349 

Retaking  property  not  always  election 329 

Retaking  property  waives  suit  for  price 329 


Set  ofif  defined 333 

Stairs  constitute  fixtures 311 

Stolen  property  vendee  liable  for  price 336 


INDEX  551 

INDEX  FOR  NEW  YORK  (Continued) 

Suit  for  purchase  price  election  when 330,  331 

Suit  for  purchase  price  not  election  when.  .  , 332 

T 

Taking  chattel  mortgage  passes  title 281 

Trustee  in  bankruptcy  no  filing  required  as  to     290,  309,  317 

Trustee  in  bankruptcy  takes  priority 326-328 

V 

Valid  as  to  prior  mortgage  of  real  estate 280 

Valid  as  to  trustee  in  bankruptcy  without  filing 290 

Valid  as  to  vendee's  assignee 227 

Vendee  can  recover  full  amount  paid  when 345 

Vendee  cannot  recover  full  amount  paid  when 345 

Vendee  has  salable  interest 276,  346 

Vendee  loses   301 

Vendee  may  transfer  right  to  refund 350 

Vendee  no  leviable  interest 273 

Vendor  cannot  retake  and  sue  for  price 328 

Vendor  liable  for  personal  injuries  inflicted  in  retaking  344 

Vendor  loses   3°^ 

W 

Waiver  of  resale  in  original  contract  not  valid.  .  .  .      338,  339 

Waiver  of  resale  valid  if  made  in  separate  instru- 
ment  after   default 337-  34h  342,  343 

Warrantv  breach  of  defense 333 


FOREIGN  CORPORATIONS  AND 
INTERSTATE  COMMERCE. 


A  corporation  organized  under  the  laws  of  one 
State  is  a  foreign  Corporation  as  to  every  other 
State  in  the  Union,  The  United  States  Constitu- 
tion gives  such  a  Corporation  the  right  to  do  Inter- 
state Commerce  business  without  the  payment  of 
State  fees  or  compliance  with  State  laws.  Nearly 
all  Corporations  are  now  doing  business  in  more 
than  one  State,  and  it  becomes  of  the  utmost  impor- 
tance for  them  to  know  where  Interstate  Commerce 
ends  and  Domestic  Commerce  begins.  They  are 
being  importuned  by  State  taxing  officials  to  make 
reports,  pay  fees,  etc.  Many  Companies  are  com- 
plying which  should  not ;  others  are  not  complying 
which  should  do  so,  in  order  to  avoid  the  penalties 
imposed,  chief  of  which  is  the  making  of  their  con- 
tracts VOID  and  NON-ENFORCEABLE. 

There  has  been  a  wide  demand  for  complete  and 
classified  information  upon  the  subject  of  Interstate 
Commerce,  as  applied  to  corporation  business,  and 
Mr.  Fred  Benson  Haring  is  the  Author  of  "Haring's 
Corporate  Interstate  Commerce  Business,"  which 
treats  this  subject  from  a  practical  viewpoint  and 
gives  a  complete  brief  of  all  decisions  made,  both 
State  and  Federal.  The  book  contains  over  eight 
hundred  pages,  with  a  complete  and  comprehensive 
index,  and  the  price  is  $6.00  delivered.  Shall  be 
pleased  to  send  a  copy  for  inspection,  if  interested. 

Distributors, 

HARING  &  HARING, 

Buffalo,  N.  Y. 

CALLAGHAN  &  CO., 

Chicago,  111. 


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